We welcome the opportunity to provide this submission concerning the appropriateness of the current approach of the Canadian Securities Administrators (the “CSA”) to determining director and audit committee member independence. Our Board takes matters of corporate governance very seriously and Power Corporation of Canada (“Power”) and its subsidiaries are active participants in the public dialogue regarding corporate governance in Canada.

Executive Summary

We believe the current regulatory approach to determining director independence is overly restrictive and inflexible, and, as such, not appropriate for all issuers in the Canadian market. The provisions deeming directors that are related to a parent (i.e., the controlling shareholder) of an issuer to be non-independent are not an appropriate response to any potential governance concerns they are intended to address. Being overly-broad, the provisions concerning independence determinations encompass directors who have no direct or indirect relationship with the issuer which could, in the view of the issuer’s board of directors, be reasonably expected to interfere with the exercise of the director’s independent judgment. While such a regime may have the advantage of being predictable in its application, its benefits are far outweighed by its negative effect, in particular with respect to family controlled companies. As discussed further herein, we recommend replacing the current director independence regime with a more flexible one, in which the independence determinations are made by the board on a case-by-case basis without reference to any deeming provisions.

The Power Group

Power (TSX: POW) is a diversified international management and holding company with interests in companies in the financial services, renewable energy, communications and other business sectors in Canada, the United States, Europe and Asia. We are major long-term shareholders of companies, including Canadian public company subsidiaries, such as Power Financial Corporation (TSX: PWF)1, Great-West Lifeco Inc. (TSX: GWO)2 and IGM Financial Inc. (TSX: IGM)3. Power has had controlling shareholders since its beginnings in 1925 and its present controlling shareholder, the Desmarais Family Residuary Trust, holds, in aggregate, directly or indirectly, an approximately 59.2% voting interest and a 20.9% equity interest in Power.

It has been our practice for decades to take an active role in the oversight of our subsidiaries. Our interests are in seeing that our own shareholders, and indeed all our stakeholders, prosper over the long-term, in alignment with members of the public that have co-invested with us in our publicly-traded subsidiaries. We work with management of our subsidiaries toward this objective, with directors and officers of Power and Power Financial Corporation serving on the boards and board committees of these subsidiaries. These directors have no relationship with the subsidiaries other than as directors and shareholders, and the full-time job of a number of our officers is to focus on and become knowledgeable about the affairs of the subsidiaries.

We think this approach works well as executives of Power and Power Financial Corporation are well placed to represent the interests of all shareholders in interacting with management at the board level. In our view, it is because of this approach that many shareholders invest in Power and in our publicly-traded subsidiaries.

Determination of Independence

National Instrument 52-110 – Audit Committees (“NI 52-110”) provides that a director is “independent” of an issuer if he or she has no direct or indirect relationship with the issuer which could, in the view of the issuer’s board of directors, be reasonably expected to interfere with the exercise of the director’s independent judgment. We agree with this approach to assessing director independence.

However, NI 52-110 further provides that a director is deemed to have such a direct or indirect relationship with an issuer (and thus not to be independent) if, among other things, the director is, or has been within the last three years, an executive officer or an employee of the issuer’s controlling shareholder. We disagree with this approach.

As noted in the Consultation Paper, the definition of independence is a central component of the Canadian corporate governance regime. First, NI 52-110 requires the Audit Committee of non-venture issuers to be composed solely of independent directors. Furthermore, the definition of independence is also relevant to National Policy 58-201, which provides guidance that nominating and compensation committees should be comprised entirely of independent directors, and to the “comply or explain” regime established under Form 1 of National Instrument 58-101 – Disclosure of Corporate Governance Practices (“Form 58-101F1”).

We believe the determination of director independence should be factual, protecting the interests of all shareholders based on actual relationships with management, while also being contextual, providing enough flexibility for diverse companies to tailor governance to their specific circumstances. As explained below, the current regime for determining director independence suffers from being overly-restrictive and inflexible.

Impact of the Current Definition of Independence

The automatic deeming provisions result in a one-size-fits-all regime which is inconsistent with the history of the CSA’s principles-based approach to corporate governance and which does not provide the necessary flexibility required to meet the needs of a diverse and increasingly innovative Canadian corporate issuer market. By imposing a rigid and narrow definition of independence, designed for widely-held public companies, the CSA indirectly penalize family-controlled companies and corporate groups such as ours, who choose to tailor their governance structure to their particular context.

Within the Power group, our governance model, which has been developed over many decades, provides for the inclusion of parent officers (and directors) on boards of subsidiary companies. We believe that the participation of the controlling shareholder is beneficial to all stakeholders. A controlling shareholder is able to support management in the pursuit of long-term strategies and to provide directors who are experienced and knowledgeable about the business of the subsidiary. Serving as a director of a subsidiary is an extension of the role as an officer of the parent shareholder and assists such person in discharging their corporate law duties by focusing on and being knowledgeable about the affairs of the subsidiary. Meanwhile, the interests of the parent are well served by the experience of and expertise in the affairs of group companies brought to the parent by those officers who also serve on the boards of its subsidiaries. The presence of our officers and directors on our subsidiaries’ boards assists our board in the proper stewardship of our holdings, enriches the discussion, and enhances the quality of governance, at both our board and our subsidiaries’ boards.

Furthermore, we believe it is appropriate for officers of the parent to be members of the subsidiary’s key committees (i.e. Audit, Nominating and Compensation Committees), to provide the knowledge and perspective of the controlling shareholder with respect to the matters under the responsibility of such committees. However, the current regime established by NI 52-110 inappropriately prevents us from including an executive officer of Power (e.g., our Chief Financial Officer) on the Audit Committees of our public subsidiaries. We believe that, given our corporate structure, our Chief Financial Officer would provide an important, value-added perspective and independent oversight with respect to financial matters at our public subsidiaries, for the benefit of all shareholders.

Similarly, Power and its public subsidiaries are made to appear to be “non-compliant” under the “comply or explain” regime established by Form 58-101F1, because of the presence of parent officers (deemed non-independent) on the Nominating and Compensation Committees at Great-West Lifeco Inc. and IGM Financial Inc. This gives an inappropriate and misleading impression to the marketplace, as our officers sitting on our publicly-traded subsidiaries’ boards and key committees are deemed to be non-independent when in fact they do not have any direct or indirect relationship with the issuer which could, in the view of the issuer’s board of directors, be reasonably expected to interfere with the exercise of the director’s independent judgment.

The CSA’s strict regime with respect to director independence on board and key committees has been adopted by a number of governance stakeholders, including governance rankings and proxy advisory firms and has resulted in negative perceptions, lower governance scores and adverse voting recommendations for Power and its group companies. We find this troublesome given that we seek to meet the highest standards of governance.

The Value of Family-Controlled Businesses and the Need for a More Flexible Governance Framework

There is no single model of good corporate governance and the structures and practices that are most appropriate vary among issuers. It is therefore important that the CSA not be overly prescriptive in the definition of independence, but rather facilitate the ability of public issuers to arrange their governance structures in ways that they determine as being appropriate to their particular circumstances and to adapt such structures as their business evolves over time. This also allows investors a wider choice of investments and governance models.

As noted by various governance commentators, including the Clarkson Centre for Board Effectiveness (“CCBE”), family-controlled firms are subject to very different realities from widely-held firms. As a consequence, because they do not conform to a one-size-fits-all governance framework, especially with respect to director independence, “they tend to be discounted from discussions about the best-governed firms.” However, as CCBE points out, “family firms often appear best able to create value for their shareholders when they choose not to adhere to typical best practices in share structure and independence”.4

Family-controlled businesses are the cornerstone of the Canadian economy, with some 90% of companies in Canada being estimated to be family-owned, generating 60% of Canada’s GDP.5 This includes a significant presence in larger businesses, where 10 of Canada’s 25 largest employers are family-controlled.6

Family control provides unique and inherent advantages, the most important of which is the ability to focus on long-term sustainable profitability. A financially strong and long-term oriented controlling shareholder is aligned with the interests of other shareholders in this respect and can have a significant positive impact on a corporation’s long-term returns, benefiting all shareholders and the corporation as a whole. As noted by Robert Monks, the founder of Institutional Shareholder Services (“ISS”), “in Canada, you have several examples of responsible ownership: The Westons, Thompsons, Desmarais and Irvings easily come to mind. […] when a leader has a personal brand at stake, as owners do, they behave differently. Responsible owners are accountable. They’re vulnerable to the consequences of their company’s actions and outcome. So they care, and make corporate decisions with both the business and their conscience in mind. […] It’s better to have owners who are dedicated to the business, able to sustain a long-term visions and apply their personal values to the enterprise.”7

According to a study by National Bank of Canada: “Over the last 10 years, large Canadian family-controlled public companies have outperformed the S&P/TSX Composite Index by 120%”, with total shareholder returns of 192.0% (11.3% per year) compared to 71.7% (5.6% per year).8 The study cites longer-term tenures for senior management, superior branding and reputation, the ability to make quicker decisions and the loyalty of employees as some of the other factors which contribute to the outperformance of family firms. Similarly, the CCBE found that “Canadian family-controlled issuers have performed better than their peers over the past 15 years, greatly benefitting minority shareholders”, while noting that the performance gap “suggests that family-controlled issuers are benefitting from their longer-term outlook, and perhaps also from their unique governance structure”.4 Furthermore, a McKinsey & Company article comments on the same topic as follows: “what’s noteworthy about [family businesses’] performance is asset productivity and brand value: their asset turnover, or ratio of revenues to invested capital, is roughly twice that of other companies, and they account for 80 percent of the brand value of the world’s most valuable labels”.9

Also, family-controlled companies have been increasing their presence among global businesses and are expected to continue to do so over the next decade. In 2014, family-controlled companies made up 19 per cent of the companies in the Fortune Global 500 (which tracks the world’s largest companies by sales), up from 15 per cent in 2005. By 2025, they are expected to increase their share of the Fortune Global 500 group to 40 per cent.10

In light of the above, we strongly believe that the current approach to director and committee member independence should be revised to permit family-controlled companies to adopt appropriately-customized governance frameworks that are based on factual circumstances and are aligned with and protect shareholder interests within the particular context of such issuers.

Conflicts of Interests and Protection of Minority Shareholders

With regard to protection of the interests of minority shareholders, deeming individuals with a relationship with a controlling shareholder to be non-independent directors of the controlled issuer inappropriately casts an overly-broad net, resulting in unnecessary negative consequences, as discussed above.

Securities laws in Canada already provide a robust regime of minority protections in Multilateral Instrument 61-101 – Protection of Minority Security Holders in Special Transactions (“MI 61-101”), requiring a separate approval of certain related party transactions and business combinations by a vote of disinterested minority shareholders, formal valuations, and including augmented and detailed disclosure requirements for proxy circulars concerning such shareholder meetings and any related material change reports. MI 61-101 also mandates the involvement of a special committee of independent directors in specific circumstances and the Companion Policy to MI 61-101 recommends their use in all material conflict of interest transactions, while Multilateral CSA Staff Notice 61-302 – Staff Review and Commentary on Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions provides extensive guidance regarding such committees and their mandates.

Furthermore, it is important to be mindful of the legal requirement that all directors must always act with regard to the best interests of the corporation as a whole, including its shareholders generally, and not any single shareholder or any shareholder group. This duty is undiminished by any relationship a director may have with a controlling shareholder, such as acting as an officer of the shareholder. Such directors must identify what they regard as the best interests of the controlled company, whether this interest conflicts with or coincides with the best interests of a particular shareholder.

In most cases, the best interests of a controlled company will be consistent with the interests of a controlling shareholder, which interests will also be aligned with the interests of minority shareholders: the creation and preservation of long-term shareholder value.

The potential governance issues (which are sometimes referred to) typically associated with controlling shareholders are not ones of “independence” but rather relate to conflicts of interests and self-dealing. Any such concerns which may exist in a controlled company should be resolved directly through a process involving only directors who are independent of the controlling shareholder and the controlled company (e.g., a committee of independent directors). Accordingly, our governance model includes such a committee, the Related Party and Conduct Review Committee, at Power and each of our publicly-traded subsidiaries. This Committee reviews any transaction between the controlling shareholder and the controlled entity to ensure that the transaction is done at market terms and conditions.

Such a mechanism provides for a precise response to a potential governance weakness and can be expected to be more effective in addressing any self-dealing or conflicts issues than the overly-broad definition of independence.

The interests of minority shareholders are not imperilled by providing that directors with a relationship with a controlling shareholder can be considered to be independent directors of the controlled issuer (as long as these directors do not have any other relationship with the controlled issuer other than as directors thereof). This view is supported by the approach taken in other jurisdictions, as identified in the CSA Consultation Paper, wherein there is an absence of evidence that such approach has been in any way detrimental to the capital markets in such jurisdictions.

Recommended Approach

The definition of independence should be adjusted to provide broader regulatory flexibility, while providing proper protection for all stakeholders involved.

The determination of director independence should be based upon whether or not the director (i) is independent of the issuer’s management, and (ii) has any other relationships with the issuer which could reasonably be expected to interfere with the exercise of the director’s independent judgment. Independence is a question of fact that should be determined by the issuer’s board of directors, on a case-by-case basis, and without reference to any presumptions such as those currently contained in NI 52-110. Directors with a relationship with a controlling shareholder should not be considered to be non-independent by definition.

With such a revised methodology for determining independence, under the “comply or explain” regime established under Form 58-101F1 and the guidance provided by National Policy 58-201, independent directors with relationships with a controlling shareholder could sit on a controlled company’s nominating and compensation committees and, under NI 52-110, could sit on a controlled company’s audit committee.

Alternative Approach

Many investors expect controlling shareholders to have substantial influence over the strategic direction of the company, the election of directors, the appointment of executives, the financial affairs of the business and executive compensation. If the CSA are unwilling to remove relationships with a controlling shareholder from the non-independence deeming provisions, NI 52-110 should be, at a minimum, updated to distinguish between directors that have a relationship with an issuer’s management, and directors that have a relationship with the controlling shareholder, but are independent of the issuer’s management (i.e., a “Related Director”), while Form 58-101F1 and National Policy 58-201 – Corporate Governance Guidelines (“NP 58-201”) should at a minimum be updated to recognize the alternate forms of good governance practices at controlled companies.

Item 1 of Form 58-101F1 and Section 3.1 of NP 58-201 currently provide that a Board of Directors should have a majority of independent Directors. In our view, a controlled company’s board should include both independent directors and Related Directors. The determination of the appropriate number of each category of director should be made by the board of directors of the issuer, based on its own particular circumstances.

Item 6(b) of Form 58-101F1 and Section 3.10 of NP 58-201 currently provide that the Nominating Committee should be composed entirely of independent directors, while Item 7(b) of Form 58-101F1 and Section 3.15 of NP 58-201 currently provide that the Compensation Committee should be composed entirely of independent directors. In our view, it is normal and appropriate in the case of a company with a controlling shareholder, to have Related Directors as members of the subsidiary Board committees (to provide knowledge and perspective of the controlling shareholder with respect to executive compensation, appointments and board nominations), as well as independent directors. The determination of the appropriate number of each category of director on the Nominating and Compensation Committees should be made by the board of directors of the issuer, based on its own particular circumstances.

Further, Section 3.1(3) of NI 52-110 should be revised to permit Related Directors to sit on an issuer’s audit committee. Such Related Directors can provide important, value-added perspective to both the subsidiary issuer and the parent with respect to financial matters. The determination of the appropriate number of each category of director on the audit committee should be made by the board of directors of the issuer, based on its own particular circumstances. Failing the foregoing changes, Section 3.3 of NI 52-110 (which provides a limited allowance for parent company officers to sit on a subsidiary issuer’s audit committee) should be amended to remove the qualification pre-requisite that the proposed audit committee member not be an officer of an affiliated issuer whose securities are traded on a marketplace. Section 3.3 already recognizes that one size does not fit all and alternate forms of audit committee composition can be appropriate in different contexts. However, it is unclear why having the affiliated issuer’s securities being traded on a marketplace diminishes the acknowledged legitimacy of participation on an issuer’s audit committee by a director who is an officer of such an affiliated issuer.

The foregoing differences are already recognized as acceptable alternative forms of good governance by many commentators that distinguish between directors that have a relationship with an issuer’s management and directors that have a relationship with the controlling shareholder, but are independent of the issuer’s management, including the Canadian Coalition for Good Governance’s (“CCGG”), in their policy Governance Differences for Equity Controlled Corporations, which, in order to “take into account the legitimate governance differences of equity controlled corporations”, also provides for greater participation by Related Directors on the Board11 and committees12 of a controlled company. For example, CCGG is of the view that “given their connection to the Controlling Shareholder, Related Directors can bring an important perspective to the audit committee which may add value to the Controlled Corporation.” A similar approach is taken by certain institutional investors, including the Caisse de dépôt et placement du Québec13, and by proxy advisory firms ISS14 and Glass Lewis15.

Even as far back as the 1994 Report of the Toronto Stock Exchange Committee on Corporate Governance in Canada (the “Dey Report”), it was recognized that governance, as a “dynamic concept”, was not a one-size-fits-all proposition and that, in particular, directors with a relationship with a company’s controlling shareholder could still be independent of the controlled company, comprise a significant proportion of the board and sit on the nominating and compensation committees of the controlled company, together with directors who are independent of the issuer and the controlling shareholder.

Conclusion

We fully endorse the proposed removal of the “bright line” tests that result in directors with a relationship with a controlling shareholder automatically being deemed to be non-independent of the subsidiary issuer. “Independence” should mean independence from the issuer and its management, and relationships between a controlling or significant shareholder and the issuer can and should be effectively addressed through the recognition and supervision of conflicts of interest. This change takes into account the realities of Canada’s capital markets and its significant proportion of controlled companies.

In the alternative, NI 52-110, Form 58-101F1 and NP 58-201 should be updated to distinguish between directors that have a relationship with an issuer’s management, and directors that have a relationship with the controlling shareholder, but are independent of the issuer’s management, recognizing the value such Related Directors can bring to an issuer’s board and committees.

Representatives of Power would be pleased to discuss the foregoing with representatives of the CSA if that would be of assistance.

Yours very truly,

Stéphane Lemay

Vice-President, General Counsel and Secretary
Power Corporation of Canada

[1] Power holds an approximately 65.5% voting interest in Power Financial Corporation.

[3] Power Financial Corporation and The Great-West Life Assurance Company, a subsidiary of Great-West Lifeco Inc., hold 61.5% and 3.8%, respectively, of IGM Financial Inc.’s common shares, representing, in aggregate, an approximately 65.3% voting interest in IGM Financial Inc.

[4] “The Impact of Family Control on the Share Price Performance of Large Canadian Publicly-Listed Firms (1998-2012)”, Clarkson Centre for Board Effectiveness at the Rotman School of Management, University of Toronto, June 2013.

[5] “Family business in North America: Facts and figures”, EY Family Business Yearbook, 2014.

[11] “The number of Related Directors of a Controlled Corporation should not exceed the proportion of the common shares controlled by the Controlling Shareholder, to a maximum of two thirds. However, if the CEO is related to the Controlling Shareholder, then at least two thirds of the directors of a Controlled Corporation should be Independent Directors.”

[12] “At least one member of each board committee of a Controlled Corporation should be an Independent Director. In addition, a majority of the members of all board committees (with the exception of the compensation committee) should be either Independent Directors or Related Directors who are independent of management of the Controlled Corporation. All members of the compensation committee should be independent of management of the Controlled Corporation. In addition, if the CEO is related to the Controlling Shareholder, no more than one member of the compensation committee should be a Related Director.”

[13] The Policy on the Principles Governing the Exercise of Voting Rights of Public Companies of the Caisse de dépôt et placement du Québec provides that “[…] when a shareholder holds a large block of shares, the nomination (or governance) and compensation (or human resources) committees must be made up entirely of members who are independent of the company, with the majority of these members also independent of the shareholder who holds a large block of shares.”

[14] ISS’s latest Proxy Voting Guidelines for TSX-Listed Companies (at “Policy Considerations for Majority Owned Companies”) provide that for qualifying controlled companies, “The number of directors related to the controlling shareholder should not exceed the proportion of common shares controlled by the controlling shareholder. […] A majority of the audit and nominating committees should be either independent directors or related directors who are independent of management. All members of the compensation committee should be independent of management.”

[15] In its latest An Overview of the Glass Lewis Approach to Proxy Advice – Canada (at “Controlled Companies”), Glass Lewis provides that, “The board of directors’ function is to protect the interests of shareholders; however, when a single individual or entity owns more than 50% of the voting shares, the interests of the majority of shareholders are the interests of that entity or individual. Consequently, Glass Lewis does not recommend withholding votes from boards whose composition reflects the makeup of the shareholder population. In other words, affiliated directors and insiders who are associated with the controlling entity are not subject to our standard independence thresholds. […] The compensation, nominating and governance committees do not need to consist solely of independent directors.”

The Secretary

Re: Canadian Securities Administrators 25-201 – Proxy Advisory Firms

Power Corporation of Canada (“Power Corporation”), as a diversified international management and holding company, has directly and indirectly invested many billions of dollars in Canada, the United States, Europe and Asia, in public and private companies that are active in the financial services, communications and other business sectors. We are major long-term shareholders of Canadian public companies, notably Power Financial Corporation, Great-West Lifeco Inc. and IGM Financial Inc.

Power Corporation and its group companies are active participants in the public dialogue regarding shareholder democracy and corporate governance matters in Canada.

We had welcomed the Canadian Securities Administrators (the “CSA”) initiative in considering the potential regulation of proxy advisory firms to address concerns raised about the activities of such firms and their potential impact on Canadian capital markets. We provided a detailed response to the Consultation Paper 25-401 dated September 19, 2012 (the “Consultation Paper”). We do not re-iterate in this submission the thorough response we made at that time nor the research underlying it. That letter provides a comprehensive basis for our comments below, with supporting analysis, research and references. Our views have not changed.

Unfortunately, the proposed National Policy 25-201 (the “Policy”) does not adequately address the concerns raised in the Consultation Paper and by reporting issuers. We believe there is a balanced approach which can address the concerns of all capital markets stakeholders, and, importantly, which can further the objectives of securities legislation (which, after all, should be the rationale for all proposed CSA initiatives).

Necessity for Regulatory Oversight

Based on an accumulation of anecdotal evidence and as a logical extrapolation of empirical studies regarding the influence of proxy advisors in the U.S. and throughout the world, we believe it is important for the CSA, through securities laws, to implement a comprehensive framework to regulate proxy advisors, including certain minimum prescribed requirements.

We think it is important to note that their advice impacts not just the proxy advisors’ clients, but also other significant capital market participants, such as reporting issuers, their directors and most importantly their shareholders who are not the clients of such firms.

Issuer Engagement

The concern with which Power Corporation has the most experience relates to issuer engagement. Power Corporation has historically been the subject of factually erroneous reports by proxy advisors, which required corrections to reports after they had been issued and had influenced voting results. In other cases, corrections were not made.

Reflecting the importance of disclosure in an information circular, applicable Canadian securities legislation regards such a document as a “core document” for purposes of civil liability for secondary market disclosures.

As a consequence, we believe that it is appropriate to require that a proxy advisory firm properly engage with issuers during proxy season. Given the important role of proxy advisors in assisting investors in making voting decisions regarding matters to be presented at shareholder meetings and the consequential nature of the outcome of such votes to participants, including participants in the capital markets beyond the proxy advisory firm’s clients (even on what may be viewed as routine matters), it is essential that proxy advisory reports contain accurate information and that voting recommendations are based on an accurate interpretation and comprehensive review of publicly available information. The outcome for matters voted on by shareholders, even if not patently strategic, can have an impact on both the current and future financial performance and reputation of an issuer and its directors.

Given that there is sufficient time between the release of meeting materials and investors' voting deadlines in Canada, a robust and credible issuer engagement process should be mandatory if a proxy advisor is to issue a report regarding an issuer.

Issuers should be provided with a draft voting advisory report prior to its release, especially in the case of “withheld” or “against” management voting recommendations and be given an appropriate opportunity to respond before a report is finalized. In this respect, as we previously indicated, we are particularly supportive of the CSA making mandatory certain aspects that have been recommended in the French Autorité des marchés financiers Recommendation No. 2011-06 of 18 March, 2011 on Proxy Advisory Firms.

One of the primary objectives of securities legislation is the timely, accurate and efficient disclosure of information concerning reporting issuers. It appears incongruous that the CSA would not enact certain minimum requirements for proxy advisory firms to achieve this fundamental objective of securities legislation, particularly as the proposed requirements we and other market participants previously suggested, and propose again herein, are not intrusive or onerous, and the benefits of which would only assist in timely, accurate and efficient disclosure.

Report Disclosure Liability

Canadian securities laws prescribe the level of detail and accuracy of information required to be disclosed by issuers for matters to be considered at shareholder meetings. In particular, if action is to be taken on any such matter, other than the approval of annual financial statements, issuers are required to briefly describe the substance of the matter in sufficient detail to enable reasonable securityholders to form a reasoned judgment concerning the matter. Rules concerning information circulars in respect of business combinations, related party transactions, take-over bids and issuer bids also mandate disclosure of all matters that would reasonably be expected to affect the decision of securityholders. Further, information circulars concerning take-over bids and issuer bids must contain executed certificates attesting that such documents contain no untrue statement of a material fact and do not omit to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made.

As noted, applicable Canadian securities legislation regards such a document as a “core document” for purposes of civil liability for secondary market disclosures. To the extent that the disclosures contained in reports (or included, summarized or quoted in other documents) released by or with the consent of proxy advisors alter the mix of available information through the inclusion of an untrue statement of a material fact (e.g., an erroneous voting recommendation based on an untrue factual support for such a recommendation) or omits to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made (e.g., the absence of a sufficient explanation regarding the voting recommendations included in the report), we believe that there should be an appropriate liability regime for proxy advisors. As the sole purpose of a proxy advisor’s voting report is to provide a voting recommendation, any error in such a report would likely be considered important to a reasonable shareholder in deciding how to vote on a matter. Considering the significant economic and reputational consequences that inaccurate or incomplete information concerning matters to be voted upon at a shareholder meeting can have on issuers and other stakeholders, proxy advisors should be held accountable for the content of their reports.

Policy Formulation/Application and Disclosure of Policies

As we previously indicated in our response to the Consultation Paper, as proxy advisory firms are strategically situated at the critical nexus of institutional investors, reporting issuers and shareholder democracy, a few proxy advisory firms have cultivated substantial, indirect rulemaking power, without any of the usual regulatory checks and balances. Proxy advisors have evolved, without securities regulatory oversight in Canada, and in the absence of the discipline provided by vigorous competition, into de facto standard setters or private regulators in respect of corporate and securities legal matters that have important and long-term national policy implications.

Although it is our view that issuer engagement during the policy formulation process is imperative, we are sensitive to the fact that proxy advisors function pursuant to contractual relationships with their clients and, accordingly, their policies may primarily reflect their clients’ views. However, given the significance of their influence, we believe that policies developed and supported by proxy advisory firms should be clear, robust and based on empirical evidence, while also being flexible enough to appropriately contemplate and accommodate the approaches to governance that issuers thoughtfully determine to be appropriate for their unique circumstances. For example, there are legitimate governance differences for controlled companies like Power Corporation and our controlled public company subsidiaries. While a “one-size-fits-all” approach is clearly inappropriate, policies of proxy advisory firms should be formed and applied in a manner that reflects the diversity of businesses and structures that comprise Canada’s capital markets.

Proxy advisors should accordingly be required to disclose the internal procedures, guidelines, standards, methodologies, assumptions and sources of information supporting their recommendations, including in respect of their data-gathering procedures. Such disclosure should be sufficient to permit not only the clients of proxy advisors, but others affected by them, to assess the quality of the data and analysis that inform voting recommendations and evaluate such recommendations on their merits.

We believe it is also important for sufficient disclosure to be made by proxy advisors, and be applied consistently, to allow issuers to form a reasonable expectation of voting recommendations in advance, without the issuer being required to purchase services and advice from the proxy advisor.

Resources

Regulation of proxy advisory firms should ensure that such firms deploy sufficient resources to carry out high-quality assessments of each proxy matter for which advice is to be provided. They should have appropriate knowledge, qualifications and experience with respect to the subject matter of voting recommendations (e.g., compensation policies, industry-specific aspects of complex merger and acquisition transactions, etc.), as well as appropriate time to consider such matters fully, after sufficient engagement with issuers, rather than just through a mechanical, “check-the-box” approach.

Potential Conflicts of Interest

Proxy advisors should be required to establish, maintain, enforce and disclose publicly written policies and procedures to address and manage conflicts of interests. Also, we believe that proxy advisors should be required to provide timely, clear and specific disclosure of any actual or potential conflict of interests they identify. A generic disclosure that a conflict of interest may exist in the circumstances is insufficient in our opinion. Finally, the CSA should consider whether disclosure may be insufficient to protect against the consequences of certain types of conflicts of interests, that go directly to the proxy advisor’s decision making ability and whether such conflicts should not instead be prohibited.

We accordingly believe there should be certain minimum requirements relating to the matters referred to above, which would not unduly restrict the flexibility and operations of proxy advisor firms, which would address the concerns identified in the Consultation Paper, and, importantly, further the primary objectives of securities legislation.

Re: 2013/14 Consultation on the Canada Business Corporations Act (the “CBCA”)

We welcome the opportunity to provide this submission concerning Industry Canada’s public consultation regarding the governance framework for CBCA corporations. Our Board takes matters of corporate governance very seriously and Power Corporation of Canada (“Power”) and its publicly traded subsidiaries are active participants in the public dialogue regarding corporate governance in Canada.

The Power Group

Power (TSX: POW) is a diversified international management and holding company that holds interests, directly or indirectly, in companies that are active in the financial services, communications and other business sectors in Canada, the United States, Europe and Asia. We believe that it is important to note that we ourselves are major long-term shareholders of companies, including CBCA-incorporated public company subsidiaries, such as Power Financial Corporation[1], Great-West Lifeco Inc.[2], and IGM Financial Inc.[3] Power has had controlling shareholders since its beginnings in 1925 and its present controlling shareholder holds, in aggregate, directly or indirectly, an approximately 59.4% voting interest in Power.

Scope of Response

While Industry Canada’s consultation discussion paper (the “Consultation Paper”) covers a wide range of governance topics, as well as administrative and technical matters concerning the CBCA, our submission concentrates on some broad overarching concepts and a few select topics, including: (i) shareholder advisory votes on compensation packages (“Say-on-Pay”); (ii) director elections by majority vote (“Majority Voting”); and (iii) separation of the roles of the Chief Executive Officer (“CEO”) and the Chair of the Board (“Split Roles”). This focus should not be viewed as blanket support for other issues raised in the Consultation Paper. While this submission will address the application of governance concepts and the proposed amendments to the CBCA in relation to public companies, we also have wholly-owned private company subsidiaries incorporated under the CBCA and do not believe that Say-on-Pay, Majority Voting and Split Roles, among other proposals in the Consultation Paper, should apply to non-distributing corporations.

Rules vs. Principles

As noted in the Consultation Paper, “As a framework statute, the CBCA provides the basic structure and standards for the direction and control of a corporation, but it does not prescribe how a corporation is to be run.[4]” It is essential that any amendments to the CBCA have regard for this established rationale and do not radically transform the CBCA into a prescriptive rule-based statute. This view has been supported by Industry Canada officials, who in 2010 raised concerns that amending the CBCA to provide for Say-on-Pay “would be a more prescriptive approach to include in a statute that was designed to be a framework only.[5]

The regulatory regime that encompasses corporate governance currently suffers from an inflation of one-size-fits-all/“check-the-box” requirements (particularly for public companies) that fail to recognize the diversity of business structures that comprise Canada’s capital markets, including controlled companies.[6] Companies incorporated under the CBCA include both private companies and companies that issue publicly traded shares, widely held companies and companies with a controlling shareholder or shareholder group, and growth-oriented founder-run start-ups and mature profitable companies. It is therefore important that the CBCA not prescribe rigid rules, but rather facilitate the ability of corporations to arrange their governance structures in ways that they determine as being appropriate to their particular circumstances and to adapt such structures as the economy and the business evolve over time. This also allows investors a wider choice of investments and governance models. This view has been supported by Industry Canada who have noted that “legislated standards may not have the flexibility needed to reflect particular circumstances and are typically more difficult to change quickly to adapt to new contexts”[7] and by the Canadian Securities Administrators, who in National Instrument 58-101 – Disclosure of Corporate Governance Practices, National Policy 58-201 – Corporate Governance Guidelines and National Instrument 52-110 – Audit Committees, provide for a flexible, disclosure-based regime that is not intended to be prescriptive.

Lack of Necessity for Revisions

The legal components of Canada’s corporate governance framework have been the subject of over a century and a half of carefully considered and well developed corporate law. This well-developed corporate governance regime should not be undermined by legislative amendments which would impair both its principled operation and its demonstrated flexibility and ability to address issues in a changing environment.

The corporate law framework has been, more recently and increasingly, augmented by securities legislation passed by provincial legislatures, rules and policies implemented by provincial and territorial securities regulators (the “CSA”) and the listing policies of Canadian stock exchanges (collectively, “Securities Laws”). Securities Laws have addressed matters of corporate governance through enhanced disclosure and, thereby, established a framework that facilitates fully-informed investors to choose which companies they wish to invest in and become shareholders of. We believe that it is of fundamental importance that investors make informed investment decisions and, accordingly, provided that a company’s disclosure record is clear, investors should be free to support the company or not through their investment decisions.

Updating the 2013 figures noted in the Consultation Paper, Canada continues to be ranked highly by the World Bank in its 2014 Doing Business Report[8],placing fourth among 189 economies in respect of protecting investors and second for ease of starting a business. In contrast, internationally, many recent corporate governance initiatives have been mandated to address perceived structural failures in the face of apparent crises. Many of these developments, which have increased both the extent and rigidity of the regulatory framework, have been criticized as being rushed, “knee-jerk” reactions that have overshot their mark or as simplistic, window dressing that has instigated unintended, adverse consequences. While we strongly believe that sound corporate governance practices are essential to the well-being of a company, prior to importing concepts from foreign jurisdictions, great care should be taken in our view to consider the impact of such measures in the appropriate context, rather than in isolation, and to avoid indiscriminately accepting the ratcheting-up of governance regulations in other jurisdictions as being synonymous with best practices that should be universally adopted.

Given that Canada has a well-functioning regime currently in-place and has not suffered the same failures that are perceived to have occurred in other jurisdictions, it is not apparent that affixing requirements into the CBCA regarding Say-on-Pay, Majority Voting and Split Roles, amongst other topics, is necessary or appropriate. Publicly traded issuers in Canada have been voluntarily adopting Say-on-Pay, Majority Voting and Split Roles to the extent that such measures are determined to be best suited to such issuers’ particular needs and circumstances, after engagement with applicable stakeholders. 128 Canadian publicly traded companies had adopted Say-on-Pay as of February 2014 (up from 70 in May 2011 and 97 in June 2012)[9], including 41% of the issuers in the S&P/TSX Composite Index[10], while 88% of S&P/TSX Composite Index issuers have implemented Majority Voting[11], and 84% of S&P/TSX Composite Index issuers have Split Roles.[12] Given the ease of accessibility provided by the shareholder proposal provisions in the CBCA and other Canadian statutes, as well as the ability of shareholders to propose and elect new directors to replace those who do not adopt requested initiatives, to the extent issuers have not put Say-on-Pay, Majority Voting and Split Roles into effect, it is our submission that these measures are viewed by shareholders of these issuers as being unnecessary additions to such issuer’s governing framework. Further, it would be a particularly acute disenfranchisement of shareholders were the CBCA to be amended to include governance provisions which have already been the subject matter of an unsupported shareholder proposal.

What should matter in our view is not adherence to automatic “check-the-box” rules, but rather whether a company has a robust, principled governance system in place which is appropriately customized to the attributes of the company and is delivering solid long-term results for the benefit of all stakeholders, including shareholders.

Acknowledgement of Governance Differences for Controlled Companies

Controlled corporations have unique considerations that impact on governance structures and the appropriateness or necessity for particular governance measures. This fact has been recognized by both regulators and commentators.

In National Policy 58-201 – Effective Corporate Governance, the CSA acknowledged that concerns have been expressed in respect of how existing governance policies affect controlled companies and the CSA committed to carefully considering such concerns, and to undertaking a study, with consultation of market participants, to examine the governance of controlled companies and consider whether to change how existing governance policies treat such companies.

On October 11, 2011, the Canadian Coalition for Good Governance (“CCGG”) published its Policy Regarding Governance Differences of Controlled Corporations (the “CCGG Controlled Company Guidelines”).[13] While we do not agree with all aspects of the CCGG Guidelines, they reflect the culmination of CCGG’s consultative research of equity controlled companies, undertaken in order to understand such companies’ unique governance issues. The CCGG Controlled Company Guidelines recognize that certain of the governance guidelines contained in CCGG’s Building High Performance Boards “may not apply equally to equity controlled companies” and, accordingly, supplement those guidelines to take into account “the legitimate governance differences of equity controlled corporations”. In September 2013, CCGG published its Dual Class Share Policy, which noted that the principles set out in the CCGG Controlled Company Guidelines also apply to dual class share companies, except to the extent modified by the Dual Class Share Policy.

Further, the Toronto Stock Exchange (“TSX”) has noted that it “understands that controlled corporations have unique considerations regarding Majority Voting.[14] We note that the TSX in its recent amendments to its rules to mandate majority voting for TSX listed companies recognized the rationale for the exclusion of controlled companies from those requirements[15]. Also, we understand that the New York Stock Exchange and NASDAQ provide controlled companies with blanket exemptions from compliance with corporate governance requirements of such exchanges.

Accordingly, while we are not supportive of the CBCA being amended to include requirements in respect of Say-on-Pay, Majority Voting and Split Roles, if any such amendments are to be enacted, it is essential that they recognize differences among companies, such as the presence of a controlling shareholder. A long-term oriented controlling shareholder with an active ownership approach can have a significant positive impact on a corporation’s long-term returns, benefiting all shareholders and the corporation as a whole. The benefits can include the ability to encourage and support management in the pursuit of long-term strategies, representing an antidote to what has been observed as being the current gradual descent into “quarterly capitalism” or the “tyranny of short-termism” where management and the boards of certain public companies over-weigh near-term earnings, to the detriment of long-term value-creation.[16][17] Any amendments to the CBCA should not undermine the beneficial role served by a controlling shareholder in this respect and should not detract from management’s and the board’s ability to focus on enabling the long-term growth of their enterprise.

Say-on-Pay

Power and our Board of Directors appreciate the importance placed on effective executive compensation programs. One of the key responsibilities of a company’s board of directors is to assess the performance of senior executives and approve their compensation arrangements, with the objective of generating superior long-term performance.

Executive compensation policies have become increasingly complex and must take into account many factors. Boards and compensation committees are faced with a multitude of potential forms of compensation to be considered, including cash (e.g., salary, annual bonus, long-term non-equity plans and pensions) and equity-based compensation (e.g., stock options, restricted share units, performance share units and stock appreciation rights), each with its own particular incentives and pay-out profile, which can be contingent on the achievement of outcomes across an extensive array of performance-based triggers (e.g., earnings per share, return on invested capital, stock price levels and any number of appropriately-crafted non-GAAP measures) which can vary as between industries, issuer growth profiles and even executive titles. We believe that a corporation’s directors are in a better position than shareholders to oversee executive compensation arrangements. A corporation’s board (or a committee thereof) has full access to the necessary information and has the benefit of external professional guidance and the relevant experience of its members to make the appropriate decisions with respect to executive compensation.

The directors, who are elected by the shareholders, have a duty to supervise the management of the business and affairs of a corporation and are required to make decisions in accordance with their fiduciary duties to act with due care and with a view to the best interests of the corporation, including its shareholders as a whole. Our courts have indicated that, in some cases, fiduciary duties may extend to other stakeholders of the corporation. Individual shareholders have no such duties, to other shareholders, to the corporation or other stakeholders. It is our view that it is important to maintain clarity regarding the role of a board as distinct from the role of shareholders (indeed, if shareholders are to be encouraged to usurp the role of the board, one is tempted to ask why such intrusion should stop with executive compensation, and not extend to other issues such as corporate strategy, capital allocation or risks, which, from most points of view, are likely far more material to the corporation).

Further, directors are responsible for ensuring that a corporation can attract and retain high-calibre executives capable of steering the corporation towards long-term success. The threat of a negative vote by shareholders may gradually emphasize the achievement of short- and medium-term financial measures while neglecting long-term value creation. To illustrate this point, in some cases, value protection, rather than growth, may be of strategic importance for a company (e.g., if a company rallies and adopts a new strategy to maintain market share and profitability in the face of new entrants or disruptive developments initiated by competitors), and the successful management of such a threat may be viewed positively by a company’s board of directors, and negatively by shareholders focused narrowly on short-term growth and out-performance. The current approach to overseeing executive compensation appropriately recognizes the board’s role and aligns the interests of a corporation’s shareholders with the need for flexibility and certainty in structuring appropriate compensation arrangements.

While proponents for Say-on-Pay argue that it is an important part of the dialogue between shareholders and company boards, Say-on-Pay votes can be difficult to interpret or misleading, because shareholders may be expressing a view about recent corporate performance rather than making a specific assessment of executive compensation. We also note that as part of the dialogue, Securities Laws provide for comprehensive and detailed disclosure of compensation for senior executives, and the processes for decisions relating thereto and, therefore, fully-informed shareholders are free to choose whether or not to invest in (or divest investments in) companies based on their views regarding such disclosures.

Any proposal requiring shareholder votes on executive compensation at a controlled company would be neither effective nor efficient. Requiring a controlled company to adopt such a policy would be an illusory shareholder democracy development at best and not serve a concrete purpose since the controlling shareholder would necessarily cast a majority of the votes to be cast in respect of such a matter. A controlling shareholder would be expected to have an active dialogue with the controlled company through its board and compensation committee, and would not choose the casting of votes at a shareholder meeting as the forum for raising its displeasure with executive compensation. Accordingly, imposing such requirements on a controlled company would only serve to increase the costs and complexity of the process for setting executive compensation.

Imposing a requirement for all CBCA corporations to implement Say-on-Pay would fail to recognize the role of the corporation’s board, would impose this mandatory request on corporations whose shareholders have not chosen to pursue this model, would ignore the realities of controlled corporations and their unique governance considerations, and compromise the need for flexibility and certainty in structuring appropriate compensation arrangements. We do not believe that such a requirement would be in the best interests of CBCA corporations or their shareholders.

Majority Voting

As both a controlled company and a controlling shareholder, it is our view that, as concerns Majority Voting, the current regime under corporate law is appropriate and no changes are desirable or necessary, particularly given recent developments under Securities Laws.

Requiring controlled companies to adopt a majority voting policy would be an illusory shareholder democracy development at best and would not serve a concrete purpose since the controlling shareholder would necessarily cast a majority of the votes to be cast in an election of the company’s directors. A controlling shareholder would be expected to have an active dialogue with the controlled company through its board and nominating committee and, as a practical matter, would not choose the casting of votes at a shareholder meeting as the forum for raising its displeasure with any board nominees. Accordingly, imposing such requirements on a controlled company would serve no purpose and would be misleading to shareholders (given it can have no possible practical effect). In addition, it would only serve to increase the costs and complexity of the process for electing directors which would not be in the best interests of the shareholders as a whole. This view has been accepted by the TSX, which, in the recent amendments to its rules to mandate majority voting for TSX listed companies, provided an exemption for controlled companies.

If Industry Canada determines to proceed with a requirement for CBCA corporations to use Majority Voting, our view is that it should not apply to companies where a controlling shareholder holds a majority of the votes to be cast in respect of the election of directors, in recognition of the fact that such controlled companies have unique governance considerations and that a majority voting policy does not serve a useful purpose for shareholders of such companies. While we strongly believe in the importance of sound corporate governance for the well-being of a company, no single corporate governance model is superior in all respects and the imposition of a “one‑size‑fits‑all” governance measure is inappropriate as it fails to recognize differences among companies, such as the presence of a controlling shareholder.

Split Roles

Requiring that all companies incorporated under the CBCA have Split Roles focusses too narrowly on one attribute of a corporation’s Chair, without consideration of the specific characteristics of the company and its board. It omits some key dimensions of effective board leadership and of a Chair’s ability to have a positive impact on the long-term results of the corporation, such as the Chair’s ability to generate a productive group discussion (including encouraging exploration of different points of view) and to facilitate a positive board culture (including its relationship with management).

Within the Power group of companies, our Chair is also a co-CEO of Power, while our subsidiaries Power Financial Corporation, IGM Financial Inc. and Great-West Lifeco Inc. have each implemented Split Roles. Power is the top holding company in our corporate group and the company in which our controlling shareholder exercises majority voting control directly. Power, in turn, exercises majority voting control, directly and indirectly, through the chain of ownership of its subsidiaries. Accordingly, we believe it is appropriate not to have Split Roles at Power and for our Chair and co-CEOs to be associates of our controlling shareholder, since it is at the Power level that many important decisions affecting our group (e.g., capital allocation and strategy) are discussed and made. It is therefore important for the controlling shareholder to be directly involved, both at the management and Board level, in those decisions.

A financially strong and long-term oriented controlling shareholder can have a significant positive impact on a corporation’s long-term returns, benefiting all shareholders and the corporation as a whole. Consistent with this fact, we believe that in appropriate situations, a controlling shareholder, as a significant investor, has a legitimate interest in serving as the Chair of the board of directors of a controlled corporation (or having a director that is not independent of the controlling shareholder so serve), and in participating in the day-to-day management of the controlled corporation, to encourage and support management in the pursuit of long-term strategies.

The Chair has a fiduciary duty to the corporation and investors expect a controlling shareholder to be more actively involved in managing its investment. [18] In such situations, the appropriate guiding principle is to ensure that effective structures and procedures are in-place to provide assurance both that the board of the controlled corporation can act independently of management (e.g. having opportunities for directors who are independent of management to meet without management present and have candid and robust discussions lead by an independent director who appropriately, subsequently provides feedback to the directors that are not independent of the controlling shareholder) and that actual or potential conflicts of interest between the controlled corporation and its controlling shareholder are dealt with appropriately (e.g. referring such matters to a suitably constituted conflict of interest committee, as is done at each of Power, Power Financial Corporation, Great-West Lifeco Inc. and IGM Financial Inc.). Corporate law, through both its conflict of interest provisions and the directors’ fundamental duty to act with a view to the best interests of the corporation (and not their own personal interests), already directly and effectively address the underlying issues whereas mandating Split Roles would be a significant change that would address the underlying issues indirectly and ineffectively, while creating other, negative, consequences.

Imposing a requirement for all CBCA corporations to have Split Roles undermines the board’s ability to oversee its own leadership structure and overlooks the benefits of CEO serving as Chair in certain companies with particular circumstances.

Conclusion

While we strongly believe that sound corporate governance is essential to the well-being of a company, no single corporate governance model is superior in all respects and the imposition of a “one-size-fits-all” governance measure is inappropriate as it fails to recognize differences among companies, such as the presence of a controlling shareholder. The current governance regime under the CBCA and, subject to a few exceptions, under Securities Laws, provides for an adaptable, principled framework within which companies can select the measures that are appropriate to their situations, in support of the goal of delivering solid long-term results for the benefit of all stakeholders, including shareholders. We do not view it as being appropriate or necessary for the CBCA to be amended to provide for a rigid, prescriptive approach containing “check-the-box” rules regarding Say-on-Pay, Majority Voting and Split Roles.

If Industry Canada determines to proceed with requiring CBCA corporations to adopt Say-on-Pay, Majority Voting and/or Split Roles, our view is that such measures should not apply to controlled corporations, in recognition of the fact that such controlled corporations have unique governance considerations.

Representatives of Power would be pleased to discuss the foregoing with Industry Canada if that would be of assistance.

Yours very truly,

Stéphane Lemay

Vice-President, General Counsel and Secretary

[1] Power holds an approximately 65.8% voting interest in Power Financial Corporation.

[3] Power Financial Corporation and The Great-West Life Assurance Company, a subsidiary of Great-West Lifeco Inc., hold 58.6% and 3.6%, respectively, of IGM Financial Inc.’s common shares, representing, in aggregate, an approximately 62.2% voting interest in IGM Financial Inc.

[4] Consultation Paper at “Introduction – About the Act”.

[5] According to the Report of the Standing Committee on Industry, Science and Technology – Statutory Review of the Canada Business Corporations Act, June 2010 at p. 8.

[6] Although, as noted in the CCGG Controlled Company Guidelines (defined herein), “Effective equity control can come from holding as little as 20% of the common shares of a widely held company.”, when used herein, “controlling shareholder” refers to shareholder with at least a 50% voting interest in a corporation and such corporations are referred to herein as “controlled companies”.

[7] From “Towards an Improved Standard of Corporate Governance for Federally Incorporated Companies – Proposals for Amendments to the Canada Business Corporations Act”, May 2004 at p. 3.

[8] World Bank, "Ease of Doing Business in Canada," Doing Business 2014.

[9] According to the Shareholder Association for Research and Education at http://www.share.ca/say_on_pay/

[14] See Notice of Approval – Amendments to Part I and Part IV of the Manual (October 4, 2012) at Appendix A: Summary of Comments and Responses Part IV – Majority Voting.

[15] See Notice of Approval – Amendments to Part IV of the Manual (February 13, 2014).

[16] See, for example, Dominic Barton and Mark Wiseman, “Focusing Capital on the Long Term” Harvard Business Review, January 01, 2014”, which notes: “Thankfully, a small but growing number of leading asset owners and asset managers have begun to act much more like private owners and managers who just happen to be operating in a public market. To create value, they engage with a company’s executives—and stay engaged over time. BlackRock CEO Laurence Fink, a leader in this kind of effort, tells companies not to focus simply on winning over proxy advisory firms (which counsel institutional investors on how to vote in shareholder elections). Instead, says Fink, companies should work directly with BlackRock and other shareholders to build long-term relationships.” and “Early in 2013 McKinsey and the Canada Pension Plan Investment Board (CPPIB) conducted a McKinsey Quarterly survey of more than 1,000 board members and C-suite executives around the world to assess their progress in taking a longer-term approach to running their companies. The results are stark:

63% of respondents said the pressure to generate strong short-term results had increased over the previous five years.

79% felt especially pressured to demonstrate strong financial performance over a period of just two years or less.

44% said they use a time horizon of less than three years in setting strategy.

73% said they should use a time horizon of more than three years.

86% declared that using a longer time horizon to make business decisions would positively affect corporate performance in a number of ways, including strengthening financial returns and increasing innovation.”

[17] It is noteworthy that on April 9, 2014, the European Commission presented a proposal for the revision of its Shareholder Rights Directive, a key focus of which proposal centered on the importance of long-term shareholders in the context of capital markets that exert pressure on companies to perform in the short-term. The proposal and accompanying frequently asked questions note the following: “Short-term incentives turn focus and resources away from making investments based on the fundamentals (strategy, performance and governance) and longer term perspectives, from evaluating the real value and longer-term value creative capacity of companies and increasing the value of the equity investments through shareholder engagement.”; “Lack of proper accountability and short-term pressure leads to suboptimal governance and prevents companies from creating long-term value and from generating growth.”; and “The proposal would incentivise institutional investors with long-term commitments to provide more "patient", i.e. long-term, capital to companies - this is about keeping shares for longer [...]." More information about the proposal can be found at http://ec.europa.eu/ireland/press_office/news_of_the_day/corporate-governance-proposals_en.htm and the frequently asked questions are available at http://europa.eu/rapid/press-release_MEMO-14-275_en.htm?locale=en.

[18] This view is supported by the CCGG Controlled Company Guidelines, which provide “In general, CCGG recognizes that a controlling shareholder may have a legitimate interest in being actively involved in the board of directors of the corporation. In fact, many institutional investors expect shareholders that control a corporation by virtue of their equity holdings to have substantial influence over the strategic direction of the company, the election of some of the directors, the appointment of executives, the financial affairs of the business and executive compensation.” at p. 1.

Ontario Securities Commission

Re: Proposed Amendments to Part IV of the Toronto Stock Exchange (“TSX”) Company Manual (the “Manual”) – Request for Comments (October 4, 2012)

We welcome the opportunity to provide this submission concerning proposed amendments to the Manual to require TSX-listed issuers to have majority voting for director elections at uncontested meetings (the “Proposed Amendments”). Our Board takes matters of corporate governance very seriously and Power Corporation of Canada (“Power”) and its subsidiaries are active participants in the public dialogue regarding corporate governance in Canada.

The Power Group

Power (TSX: POW) is a diversified international management and holding company that holds interests, directly or indirectly, in companies that are active in the financial services, communications and other business sectors in Canada, the United States, Europe and Asia. We are major long-term shareholders of companies, including Canadian public company subsidiaries, such as Power Financial Corporation (TSX: PWF)[1], Great-West Lifeco Inc. (TSX: GWO)[2] and IGM Financial Inc. (TSX: IGM)[3]. Power has had controlling shareholders since its beginnings in 1925 and its present controlling shareholder holds, in aggregate, directly or indirectly, an approximately 61% voting interest in Power.

Appropriateness of this TSX Initiative

As Canada’s senior equities market, the TSX plays a vital supervisory role, contributing to the proper functioning of Canadian capital markets. However, director election practices are currently, and have been historically, the subject of carefully considered and well-developed corporate law. We respectfully submit that the TSX should not regulate areas outside of its primary and historical jurisdiction and expertise[4], which relate primarily to the disclosure of material information and issuances of securities by listed issuers.

We note that the TSX recently approved amendments to Part IV of the Manual, effective December 31, 2012, and that such amendments provide for a comply-or-explain disclosure model concerning majority voting for director elections (the “Recent Amendments”). The Proposed Amendments would represent a further expansion of the TSX’s role in this area which we believe would not be appropriate.

Majority Voting

One Size Does Not Fit All

While we strongly believe that sound corporate governance practices are essential to the well-being of a company, the TSX should not impose a “one size fits all” regime requiring majority voting for all director elections at uncontested meetings. Issuers should have the flexibility to adopt governance practices that they believe are best suited for their particular needs and circumstances, subject to compliance with applicable corporate law. Along these lines, we do not agree with the assertion in the Proposed Amendments that the percentage of TSX-listed issuers currently subject to majority voting standards “reflects support for mandating the practice for all TSX-listed issuers”.

Governance Differences for Controlled Companies[5]

Since 2007, our shareholders have had the ability to vote for or withhold from voting for each individual nominee proposed for election to our Board of Directors. As both a controlled company and a controlling shareholder, it is our view that, as concerns majority voting, the current regime under corporate law is appropriate and no changes are desirable or necessary. We are in compliance with corporate laws in respect of director elections[6] and would respectfully point out that Canadian corporate law in this regard is the result of over a century and a half of careful consideration by both the courts and the applicable legislatures.

Requiring controlled companies to adopt a majority voting policy would be an illusory shareholder democracy development at best and would not serve a concrete purpose since the controlling shareholder would necessarily cast a majority of the votes to be cast in an election of the company’s directors. In such a context, it is unclear how a majority voting policy would provide “a meaningful way for security holders to hold directors accountable”.[7] A controlling shareholder would be expected to have an active dialogue with the controlled company through its board and nominating committee and, as a practical matter, would not choose the casting of votes at a shareholder meeting as the forum for raising its displeasure with any board nominees. Accordingly, imposing such requirements on a controlled company would serve no purpose and would be misleading to shareholders (given it can have no possible practical effect). In addition, it would only serve to increase the costs and complexity of the process for electing directors and would not be in the best interests of the shareholders as a whole. Finally, taking into consideration the specificity of controlled companies is all the more warranted considering that approximately 18% of the firms listed in the S&P/TSX Index are controlled companies.[8]

Acknowledgement of Governance Differences for Controlled Companies

The TSX has noted that it “understands that controlled corporations have unique considerations regarding majority voting.”[9]

On October 11, 2011, the Canadian Coalition for Good Governance (“CCGG”) published its Policy Regarding Governance Differences of Controlled Corporations (the “CCGG Policy”). While we do not agree with all aspects of the CCGG Policy, they reflect the culmination of CCGG’s consultative research of equity controlled companies, undertaken in order to understand such companies’ unique governance issues.[10] The CCGG Policy recognized that certain of the governance guidelines contained in CCGG’s Building High Performance Boards “may not apply equally to equity controlled companies”. Accordingly, the CCGG Policy supplemented those guidelines to take into account “the legitimate governance differences of equity controlled corporations”.

While the CCGG Policy provides that, generally, companies should adopt a majority voting policy, they recognize that for controlled companies,[11] adoption of such a policy would rarely lead to the resignation of a director, and therefore, a controlled company should instead adopt a policy that commits the company to: (i) allowing shareholders to vote for each individual director; (ii) disclosing the results of director elections promptly after each annual meeting, and (iii) immediately adopting a majority voting policy if at any time the company ceases to be a controlled company.

Further, in National Policy 58-201 – Effective Corporate Governance, the Canadian Securities Administrators (“CSA”) acknowledged that concerns have been expressed in respect of how existing governance policies affect controlled companies and the CSA committed to carefully considering such concerns, and to undertaking a study, with consultation of market participants, to examine the governance of controlled companies and consider whether to change how existing governance policies treat such companies.[12]

Also, the New York Stock Exchange (“NYSE”) has exempted controlled companies from certain NYSE listing rules, such as the requirement of a majority of independent board members, in recognition of the fact that controlled companies give rise to unique governance considerations.

Conclusion

The comply-or-explain model included in the Recent Amendments already implies that adoption of a majority voting policy is a best practice for all companies, with corollary negative implications for companies with legitimate explanations for non-adoption. While we do not support requiring issuers to adopt majority voting standards for uncontested director elections, we believe that, given the Recent Amendments, any further regulation of such matters should be considered by the legislatures through amendments to corporate legislation and that any further changes to the applicable provisions of the Manual would be premature.

If the TSX determines to proceed with the Proposed Amendments, our view is that they should not apply to companies where a controlling shareholder holds a majority of the votes to be cast in respect of the election of directors, in recognition of the fact that such controlled companies have unique governance considerations and that a majority voting policy does not serve a useful purpose for shareholders of such companies. While we strongly believe that sound corporate governance is essential to the well-being of a company, no single corporate governance model is superior in all respects and the imposition of a “one-size-fits-all” governance measure is inappropriate as it fails to recognize differences among companies, such as the presence of a controlling shareholder.

Representatives of Power would be pleased to discuss the foregoing with the TSX if that would be of assistance.

Yours very truly,

Stéphane Lemay

Vice-President, General Counsel and Secretary

[1] Power holds an approximately 66.1% voting interest in Power Financial Corporation.

[3] Power Financial Corporation and The Great-West Life Assurance Company, a subsidiary of Great-West Lifeco Inc., hold 58.5% and 3.7%, respectively, of IGM Financial Inc.’s common shares, representing, in aggregate, an approximately 62.2% voting interest in IGM Financial Inc.

[4] On February 22, 2005, the Ontario Securities Commission approved amendments to the Manual relating to corporate governance, effectively ceding regulation of such matters to the Canadian Securities Administrators.

[5] While we acknowledge that a shareholder can effectively maintain control with less than a majority voting interest in a corporation, when used herein, “controlling a shareholder” refers to shareholder with at least a 50% voting interest in a corporation and such corporations are referred to herein as “controlled companies”.

[6] We also acknowledge the new requirements in the Recent Amendments and will comply with such requirements following their effectiveness.

[7] We are strongly opposed to any future imposition of a “majority of the minority” voting requirement for director elections as such a requirement would effectively disenfranchise controlling shareholders and expropriate their rights without compensation.

[8] See results of the study of voting power in the 253 listed firms in the S&P/TSX Index in July 2008, reported in Policy Paper No. 3, “The Independence of Board Members: a Quest for Legitimacy”, of the Institute for Governance of Private and Public Organizations.

[9] See Notice of Approval – Amendments to Part I and Part IV of the Manual (October 4, 2012) at Appendix A: Summary of Comments and Responses, Part IV – Majority Voting.

[10] The CCGG has committed to preparing guidelines for dual-class share companies, which have further unique governance issues, in the future.

[11] As the CCGG Policy only relate to those issuers who are controlled through the ownership of common shares, and not to issuers who are controlled by virtue of multiple-voting or dual-class share structures, “controlled companies”, in this context, are limited to companies where a shareholder controls 50% or more of the common shares.

[12] See Section 1.1. We note the importance to investors, large or small, of this undertaking by the CSA and encourage the CSA to continue its review and to proceed with appropriate revisions at an early opportunity.

We welcome the initiative of the Canadian Securities Administrators (the “CSA”) in considering the potential regulation of proxy advisory firms to address concerns raised about the activities of such firms and their potential impact on Canadian capital markets.

Proxy advisors currently wield significant influence within Canadian securities markets, functioning as both an unofficial developer and “enforcer” of governance standards, as well as an arbiter of fundamental transactions (e.g., mergers). Given the vital importance under Canadian securities laws of accurate disclosure regarding reporting issuers, as well as the maintenance of high standards of fitness and business conduct by market participants, we believe it is appropriate for the CSA to develop a securities regulatory framework that prescribes expected actions and disclosures and otherwise holds such proxy advisory firms accountable for the accuracy, independence and reliability of their advice.

The Power Group

Power Corporation of Canada (“Power Corporation”), as a diversified international management and holding company, has directly and indirectly invested many billions of dollars in Canada, the United States, Europe and Asia, in companies that are active in the financial services, communications and other business sectors. We are major long-term shareholders of companies, including Canadian public company subsidiaries, such as Power Financial Corporation (66.1%), Great-West Lifeco Inc.[1] and IGM Financial Inc.[2] In addition, Power Corporation has had a controlling shareholder since its beginnings in 1925 and its current controlling shareholder holds in aggregate, directly or indirectly, shares carrying 61.1% of the votes attached to our outstanding voting shares.

Power Corporation and its group companies are active participants in the public dialogue regarding shareholder democracy and corporate governance matters in Canada.

Necessity for Regulatory Oversight

We understand that the demand for firms to assist in (i) aggregating information, (ii) providing research and analysis of matters to be decided at shareholder meetings, and (iii) facilitating voting on such matters by institutional investors, has grown rapidly over the past few decades and is expected to continue to do so. Accordingly, we believe it is important to acknowledge the significant role proxy advisors serve and recognize the positive contribution they can make to the corporate governance process, if properly regulated.

Strategically situated at the critical nexus of institutional investors, reporting issuers and shareholder democracy, a few proxy advisory firms have cultivated substantial, indirect rulemaking power, and operate much like governmental agencies or self-regulatory organizations, but without any of the usual regulatory checks and balances, appeals processes or other safeguards. In such role, these proxy advisors have evolved, without securities regulatory oversight in Canada, and in the absence of the discipline provided by vigorous competition, into de facto standard setters or private regulators in respect of corporate and securities legal matters that have important and long-term national policy implications.

Based on an accumulation of anecdotal evidence and as a logical extrapolation of empirical studies regarding the influence of proxy advisors in the U.S.[3], we believe it is important for the CSA, through securities laws, to recognize their potential impact on the integrity of Canadian capital markets. As further discussed herein, the CSA should implement a unique and comprehensive framework to regulate proxy advisors, recognizing their distinct role and drawing upon the existing frameworks governing other market participants, as applicable.

While proxy advisors do not function as “dealers” or “advisors”, there is no principled basis for drawing a distinction between being in the business of advising with respect to investment in or the purchase or sale of securities and being in the business of advising with respect to the voting of securities. Further, while unlike credit rating agencies, proxy advisors do not have a formal role recognized in securities legislation, we are not convinced that the uniqueness of proxy advisors’ business models justifies the lack of their regulation as market participants. In particular, we are struck by some of the similarities between proxy advisory firms and credit rating agencies[4], including the following: the use of an assessment system based on proprietary models; significant reliance by many investors on the firms’ views; industry dominance by a few firms; concerns regarding potential conflicts of interests; and concerns regarding the integrity of data on which the assessments are based. Although we are not specifically advocating for the adoption of a designation framework, we find many aspects of the recently adopted National Instrument 25-101 Designated Rating Organizations (“NI 25-101”) to be compelling in populating the fundamental components of a strong, coherent regulatory framework for proxy advisors. See Appendix A below.

In the context of the current concerns and potential problems identified in the Consultation Paper (and in other documents published by regulatory authorities in the United States and across Europe), the CSA has an opportunity to implement warranted regulation and such oversight should be exercised promptly to address identified concerns, rather than in response to an actual, pervasive market failure. The chosen regulatory framework should contain prescriptive mandates (e.g., regarding issuer engagement, personnel competency and liability provisions) to hold proxy advisors accountable for the accuracy, independence and reliability of their advice, as well as requirements for increased disclosure to ensure that investors have adequate information to allow them to monitor the quality of the information provided by proxy advisors.

Institutional Shareholder Services Inc. (“ISS”)

As noted in the Consultation Paper, ISS is the dominant player in a highly concentrated proxy advisory industry in the United States. Our experience in Canada has been consistent with this description and, consequentially, this letter reflects only our familiarity with ISS and its operations. Accordingly, to the extent other proxy advisory firms’ businesses and processes differ from those of ISS, the regulatory framework developed by the CSA may need to prescribe further actions and disclosures, as appropriate, beyond those noted in this submission.

Issuer Engagement

While we believe that the Consultation Paper identifies and addresses a number of important concerns relating to the activities of proxy advisors, the concern with which Power Corporation has the most experience relates to issuer engagement. Given the fundamental importance under Canadian securities laws of accurate disclosure regarding reporting issuers, we are concerned about the current risk of inaccuracy in proxy advisors’ reports and voting recommendations and the absence of meaningful consequences for proxy advisors with respect thereof. In particular, we are concerned by the risk that, due to the same resource constraints that result in an investor’s engagement of a proxy advisor, the investor may review the incomplete, potentially insufficient, and possibly inaccurate information summarized in a proxy advisory report and not verify and consider, prior to voting, the detailed disclosure provided by the issuer in its management proxy circular or in other public documents.

Power Corporation has been the subject of erroneous reports by proxy advisors. In the past, we would annually review draft proxy voting reports and provide comments to the applicable proxy advisor in an attempt to correct factual and other errors contained in such reports. However, several years ago we determined that our comments were not adequately being taken into account by the proxy advisor and resolved to cease devoting significant resources to that consultative process. In 2009 for example, the proxy advisor failed to take into account 73% and 43%, respectively, of the corrections suggested by Power Corporation and by its subsidiary Power Financial Corporation. As a consequence, the published reports contained substantial factual inaccuracies. These concerns were further brought to the attention of the proxy advisory firm, but no response was ever received.

It is our belief that, during proxy season, it is appropriate for a proxy advisory firm to engage with issuers in all circumstances, not just on “contentious situations”[5]. Given the important role of proxy advisors in assisting investors in making voting decisions regarding matters at shareholder meetings and the consequential nature of the outcome of such votes (even on what may be viewed as routine matters[6]), it is essential that proxy advisory reports contain accurate information and that voting recommendations are based on an accurate interpretation and comprehensive review of publicly available information. The outcome for matters voted on by shareholders, even if not patently strategic, can have an impact on both the current and future financial performance and reputation of an issuer. Issuer engagement may also serve to better clarify an issuer’s understanding of the proxy advisor’s policies and reasons for its voting recommendations.

Given that there is sufficient time between the release of meeting materials and investors' voting deadlines in Canada, a robust and credible issuer engagement process should be mandatory[7] if a proxy advisor is to issue a report on an issuer. It is unacceptable for a proxy advisor to cite resource constraints (see also “Resources” below[8]) as a reason for not engaging with an issuer – in such situations, the proxy advisor should refrain from issuing an advisory report. Any such issuer engagement must also involve a dialogue rather than an e-mail address or a portal for issuer submissions[9]. We appreciate that any such engagement should be limited to publicly available information (to the extent material) and, to maintain the independence of the proxy advisor’s process and advice, should not be viewed by issuers as a legislated right to lobby for a voting recommendation.

Further, in all cases[10], issuers should be provided with a draft voting advisory report prior to its release, although issuers should be under no obligation to engage with the proxy advisor. In this respect, we are particularly supportive of the CSA making mandatory certain aspects that have been recommended in the French Autorité des marchés financiers Recommendation No. 2011-06 of 18 March, 2011 on Proxy Advisory Firms (the “AMF France Recommendation”)[11] :

the report must explain the reasons supporting the voting recommendations for each resolution, particularly with regard to the proxy advisor’s published general voting policy;

issuers should be given sufficient time[12] to provide comments or any feedback in respect of the draft report;

at the issuer’s request, the proxy advisor should be required to include the issuer’s comments on the voting recommendations in the final report, on the condition that any such comments are concise, help the shareholders understand the draft resolutions on which they are to vote, and do not include discussion on the general voting policy;

the proxy advisor should at all times be required to correct any substantive error found in its draft report and ensure that any such correction is submitted to its clients as quickly as possible; and

the proxy advisor should be required to send the issuer in question its final analysis report as early as possible, and at the same time as it is submitted to the proxy advisor’s clients.

We recognize that the provision of a draft voting advisory report to an issuer should be made subject to appropriate safeguards[13].

It is our belief, which belief is shared by ISS[14], that issuer engagement and a formal review process would improve the accuracy and quality of analyses by proxy advisors. We further believe that a lack of adequate issuer engagement by a proxy advisor could reasonably be expected to create a significant risk of harm to a subject issuer or the issuer’s investors and that, accordingly, a securities regulatory response is warranted.

Report Disclosure Liability

The decoupling of economic interest and vote decision-making that is inherent in the business model of proxy advisory firms necessarily results in proxy advisors operating without proportionate economic exposure to the consequences of faulty disclosure, advice and, ultimately, voting decisions.

Canadian securities laws have high expectations regarding the level of detail and accuracy of information required to be disclosed by issuers in the context of matters to be considered at shareholder meetings. In particular, if action is to be taken on any such matter, other than the approval of annual financial statements, issuers are required to briefly describe the substance of the matter[15] in sufficient detail to enable reasonable securityholders to form a reasoned judgment concerning the matter. Rules concerning information circulars in respect of business combinations, related party transactions, take-over bids and issuer bids also mandate disclosure of all matters that would reasonably be expected to affect the decision of securityholders. Further, information circulars concerning take-over bids and issuer bids must contain executed certificates attesting that such documents contain no untrue statement of a material fact and do not omit to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made.

Reflecting the importance of disclosure in an information circular, applicable Canadian securities legislation regards such a document as a “core document” for purposes of civil liability for secondary market disclosures. To the extent that the disclosures contained in reports (or included, summarized or quoted in other documents) released by or with the consent of proxy advisors alter the mix of available information through the inclusion of an untrue statement of a material fact (e.g., an erroneous voting recommendation based on an untrue factual support for such a recommendation) or omits to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made (e.g., the absence of a sufficient explanation regarding the voting recommendations included in the report), we believe that there should be an appropriate liability regime for proxy advisors. As the sole purpose of a proxy advisor’s voting report is to provide a voting recommendation, any error in such a report would likely be considered important to a reasonable shareholder in deciding how to vote on a matter. Considering the significant economic and reputational consequences that inaccurate or incomplete information concerning matters to be voted upon at a shareholder meeting can have on issuers and other stakeholders, proxy advisors should be held accountable for the content of their reports.

Policy Formulation/Application and Disclosure of Policies

Although it is our view that issuer engagement during the policy formulation process is imperative, we are sensitive to the fact that proxy advisors function pursuant to contractual relationships with their customers and, accordingly, their policies may primarily reflect the views of their customers. However, given the significance of their influence, we believe that policies developed and supported by proxy advisory firms should be clear, robust and based on empirical evidence, while also being flexible enough to appropriately contemplate and accommodate the approaches to governance that issuers thoughtfully determine to be appropriate for their unique circumstances. For example, there are legitimate governance differences for controlled companies like Power Corporation and our controlled public company subsidiaries. A “one-size-fits-all” approach is clearly inappropriate. In addition, policies of proxy advisory firms should be formed and applied in a manner that reflects the diversity of businesses and structures that comprise Canada’s capital markets[16], whether a subject issuer be a seasoned or start-up issuer, a utility or growth company, a holding company or manufacturer, or a financial services or mining issuer, for example[17]. Surely this must also be the expectation of the institutional investors that subscribe to the services of proxy advisors.

We are also concerned that proxy advisors may be subject to commercial pressure to add new elements to their policies and guidelines each year to increase revenues and entrench their engagement by clients. The end result is that changes in governance policies promoted by proxy advisors may be taking place faster than warranted and before their impact is fully understood. In order to control such occurrences, proxy advisors should be required to disclose the empirical evidence supporting any change in their guidelines.[18]

Proxy advisors should also be required to disclose the internal procedures, guidelines, standards, methodologies, assumptions and sources of information supporting their recommendations, including in respect of their data-gathering procedures. Such disclosure should be sufficient to: permit the clients of proxy advisors to assess the quality of the data and analysis that inform voting recommendation and evaluate such recommendations on their merits; and allow issuers to form a reasonable expectation of voting recommendations in advance, without the issuer being required to purchase services and advice from the proxy advisor. Such disclosure should also state the number of companies each analyst reviews within a given time frame and whether or not the voting recommendations are subject to a second level of review by a senior analyst or manager.

Resources

As noted in the European Securities and Markets Authority Discussion Paper An Overview of the Proxy Advisory Industry - Considerations on Possible Policy Options, dated March 22, 2012 (the “ESMA Paper”), “the availability of skilled and knowledgeable proxy advisor staff is a key factor in the production of accurate, independent and reliable proxy research and advice”[19]. The ESMA Paper further provides: “... it has been suggested to us that one of the challenges, bearing in mind the seasonal nature of the general meetings season, is the scarcity of skilled and knowledgeable staff in the industry, including skills to appropriately consult with issuers and investors. This results in, according to some feedback to the ESMA survey, a need to recruit (less experienced) temporary staff during the busier general meeting season or in outsourcing some of the work. [...] Temporary staff could therefore create a risk of less adequate or less accurate research and advice being prepared in relation to specific issuers, particularly bearing in mind the large number of issuers being analysed, and the very tight deadlines involved. As a result, specific factors or issues related to issuers may not always appropriately be taken into account.”[20]

To the extent that the observations contained in the ESMA Paper also apply in the Canadian context (and the underlying contributing factors would appear to be similar across markets[21]), Power Corporation is concerned that, absent proper regulation, any such limitations in resources may lead to the application of automatic, “check-the-box” approaches by proxy advisors, through the automation of a large portion of the assessment process to leverage simplistic analytic models designed to avoid particularized research or the application of meaningful judgment. Any such business model places the integrity of Canadian capital markets at risk.

We acknowledge that the proxy season in Canada is concentrated within a few months and that, like any seasonal business, proxy advisor resources can be expected to be strained during peak periods. Further, we acknowledge that as the focus on shareholder involvement in corporate governance (e.g., shareholder proposals) and compensation matters (e.g., the advent of say-on-pay votes), as well as other matters for which shareholder approval is required (e.g., shareholder rights plans), has increased, the demand for the services of proxy advisors has grown and is expected to continue to grow. We also recognize that investors are unwilling to pay limitless amounts for voting services. However, given the fundamental importance under Canadian securities laws of the maintenance of high standards of fitness and business conduct by market participants, we do not view these as acceptable reasons for any diminution in the regulatory expectations that should be placed on proxy advisory firms.

Regulation of proxy advisory firms should ensure that such firms deploy sufficient resources to carry out high-quality assessments of each proxy matter for which advice is to be provided by having employees with appropriate knowledge, qualifications and experience for the duties assigned and with respect to the subject matter of voting recommendations (e.g., compensation policies, industry-specific aspects of complex merger and acquisition transactions, etc.)[22], as well as appropriate time to consider such matters fully, after sufficient engagement with issuers, rather than just through a mechanical, “check-the-box” approach. In this respect, like other market participants, employees of proxy advisors involved in policy formulation or application should be subject to competency requirements (i.e., minimum standards and qualifications, as well as testing, concerning subject matter proficiency). We believe that such concerns would be best addressed through the implementation of a registration framework for proxy advisor personnel, similar to the one applicable to investment advisers, but taking into account the specificities of the proxy advisory context.

The availability of resources and the competency of proxy advisor personnel are particularly important when one considers that proxy advisors are not subject to duties comparable to those imposed on an issuer’s directors by Canadian corporate statutes. In exercising their powers and discharging their duties, including when contemplating recommending a matter to be voted upon by shareholders, members of a corporation’s board (or a special committee of the board specifically formed for such purposes) must act honestly and in good faith with a view to the best interests of the corporation and exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Accordingly, directors are required to devote sufficient time to considering such matters and, to the extent necessary, draw upon the available expertise of their advisors. If proxy advisory firms are to consider proposing to shareholders recommendations that are contrary to those of an issuer’s directors, it is reasonable to require that such firms allocate sufficient, appropriately qualified resources to analyze matters presented for shareholder approval.

Potential Conflicts of Interest

We believe that the objectivity of voting advice is of critical importance and, if left unregulated, conflicts of interest can compromise the independence of vote recommendations and risk negatively impacting on the integrity of Canadian capital markets. Regulation of proxy advisors should address potential conflicts of interest in order to safeguard against potential market failures.[23] In addition to the conflicts of interest specifically outlined in the Consultation Paper, the regulatory framework should also cover the following potential situations:

analysts or executives within a proxy advisor have an ownership interest in or serve on the board of directors of issuers that have proposals on which the proxy advisor is offering vote recommendations;

an institutional investor client instigates a “vote no” campaign in respect of a proposal, on which a proxy advisor is offering a vote recommendation;

an institutional investor client is also a public company whose own proxies are the subject of a proxy advisor’s analyses and voting recommendations; and

the inherent forward-looking conflict of interest embedded in certain policy formulations (e.g., “say-on-pay”: a proxy advisor has a clear business interest in seeing say-on-pay becoming universally adopted so that every issuer’s compensation practices would have to be evaluated annually).

Proxy advisors should be required to establish, maintain, enforce and disclose publicly written policies and procedures to address and manage conflicts of interests. Also, we believe that proxy advisors should be required to provide timely, clear and specific disclosure of any actual or potential conflict of interests they identify. A generic disclosure that a conflict of interest may exist in the circumstances is insufficient in our opinion. Finally, the CSA should consider whether disclosure may be insufficient to protect against the consequences of certain types of conflicts of interests, that go directly to the proxy advisor’s decision making ability and whether such conflicts should not be instead prohibited.

NI 51-102 Disclosure of Proxy Advisor Consulting Services

The CSA should not propose in our view an amendment to NI 51-102 to require reporting issuers to disclose consulting services from proxy advisors in their proxy circular. The appropriate location for any such notice would be as part of the conflict of interest disclosure within a proxy advisor’s voting report. Disclosure in a reporting issuer’s proxy circular would serve no additional purpose and, in fact may exacerbate the current issues contemplated by the Consultation Paper. In particular, any such disclosure could risk overstating the relevance of the involvement of a proxy advisor as a positive influence on an issuer’s governance practices, functioning as a “seal of approval” which pressures issuers into employing the services of proxy advisory firms.

Conclusion

Proxy advisors are significantly involved in establishing and enforcing governance standards in Canada. Given the fundamental importance under Canadian securities laws of accurate disclosure regarding reporting issuers, as well as the maintenance of high standards of fitness and business conduct by market participants, we believe it is appropriate for the CSA to develop a securities regulatory framework commensurate with the significance of the role served by proxy advisors. Such a regulatory framework should prescribe expected actions and disclosures and otherwise hold such firms accountable for the accuracy, independence and reliability of their advice. The CSA should act promptly, rather than in response to an actual, pervasive market failure.

Representatives of Power Corporation would be pleased to discuss with representatives of the CSA the foregoing, including specific examples of our experience with proxy advisory firms, if that would be of assistance.

Yours very truly,

Stéphane Lemay

Vice-President, General Counsel and Secretary

Appendix A

In establishing a regulatory framework governing proxy advisory firms, we find that many aspects of Appendix A to the recently implemented NI 25-101 to be compelling, including, but not limited to, the following items:

2.1 A designated rating organization must adopt, implement and enforce procedures in its code of conduct to ensure that the credit ratings it issues are based on a thorough analysis of all information known to the designated rating organization that is relevant to its analysis according to its rating methodologies.

2.5 [...] The designated rating organization will ensure that its ratings employees and agents have appropriate knowledge and experience for the duties assigned.

2.6 The designated rating organization, its ratings employees and its agents must take all reasonable steps to avoid issuing a credit rating, action or report that is false or misleading as to the general creditworthiness of a rated entity or rated securities.

2.7 The designated rating organization will ensure that it has and devotes sufficient resources to carry out high-quality credit assessments of all rated entities and rated securities. When deciding whether to rate or continue rating an entity or securities, the organization will assess whether it is able to devote sufficient personnel with sufficient skill sets to make a credible rating assessment, and whether its personnel are likely to have access to sufficient information needed in order make such an assessment. A designated rating organization will adopt all necessary measures so that the information it uses in assigning a rating is of sufficient quality to support a credible rating and is obtained from a source that a reasonable person would consider to be reliable.

2.13 The designated rating organization will ensure that adequate personnel and financial resources are allocated to monitoring and updating its credit ratings. Except for ratings that clearly indicate they do not entail ongoing monitoring, once a rating is published the designated rating organization will monitor the rated entity’s creditworthiness on an ongoing basis and, at least annually, update the rating. In addition, the designated rating organization must initiate a review of the accuracy of a rating upon becoming aware of any information that might reasonably be expected to result in a rating action (including termination of a rating), consistent with the applicable rating methodology and must promptly update the rating, as appropriate, based on the results of such review.

3.4 The designated rating organization will not allow its decision to assign a credit rating to a rated entity or rated securities to be affected by the existence of, or potential for, a business relationship between the designated rating organization or its affiliates and any other person or company including, for greater certainty, the rated entity, its affiliates or related entities.

3.5 The designated rating organization and its affiliates will keep separate, operationally and legally, their credit rating business and their rating employees from any ancillary services (including the provision of consultancy or advisory services) that may present conflicts of interest with their credit rating activities and will ensure that the provision of such services does not present conflicts of interest with their credit rating activities. The designated rating organization will define and publicly disclose what it considers, and does not consider, to be an ancillary service and identify those that are ancillary services. The designated rating organization will disclose in each ratings report any ancillary services provided to a rated entity, its affiliates or related entities.

3.7 The designated rating organization will identify and eliminate or manage and publicly disclose any actual or potential conflicts of interest that may influence the opinions and analyses of ratings employees.

3.8 The designated rating organization will disclose the actual or potential conflicts of interest it identifies under section 3.7 in a complete, timely, clear, concise, specific and prominent manner.

4.12 Before issuing or revising a rating, the designated rating organization will inform the issuer of the critical information and principal considerations upon which a rating will be based and afford the issuer an opportunity to clarify any likely factual misperceptions or other matters that the designated rating organization would wish to be made aware of in order to produce an accurate rating. The designated rating organization will duly evaluate the response.

[2] Power Financial Corporation and The Great-West Life Assurance Company, a subsidiary of Great-West Lifeco Inc., hold 58.3% and 3.7%, respectively, of IGM Financial Inc.’s common shares.

[3] See, among others: “The Economic Consequences of Proxy Advisor Say-on-Pay Voting Policies” David F. Larcker, Allan L. McCall and Gaizka Ormazabal, Stanford University, Rock Center for Corporate Governance Working Paper Series No. 119, draft dated July 5, 2012 (the “Rock Centre Study”). The study concluded that proxy advisory firm recommendations have a substantive impact on say-on-pay voting outcomes. Similarly, the “2012 Say on Pay Results” report published by Semler Brossy (see www.semlerbrossy.com) found that a negative vote recommendation from ISS on say-on-pay will swing 30% of the total votes into the vote “no” column. See also the Special Report of the Altman Group, “Proxy Advisory Firms: The Debate Over Changing the Regulatory Framework” (at http://www.altmangroup.com/pdf/TAGSpecRptProxyAdv.pdf), analyzing the comments submitted in response to the SEC Concept Release on the U.S. Proxy System published on July 14, 2010 (the “SEC Concept Release”). The report discusses special instances (such as close votes) where the influence of proxy advisory firms far outweighs their typical influence across a broad sample base.

[4] See, in support of this assertion, the SEC Concept Release, at page 121: “Finally, in light of the similarity between the proxy advisory relationship and the “subscriber-paid” model for credit ratings, we could consider whether additional regulations similar to those addressing conflicts of interest on the part of Nationally Recognized Statistical Rating Organizations (“NRSROs”) would be useful responses to stated concerns about conflicts of interest on the part of proxy advisory firms.”

[5] Per http://www.issgovernance.com/policy/EngagingWithISS: “During proxy season, [...], analysts will not generally be able to engage with issuers except on contentious issues: mergers, proxy contests, or other non-routine or extraordinary situations”; and “For non-contentious situations, it is the analysts' discretion whether to engage further with the company after it has filed its proxy, and they generally only do so to clarify points on which they have questions.”

[6] For example, the importance to a director of being re-elected; the importance to an auditor of being re-appointed; the importance to executive officers of being compensated appropriately; and the importance to an issuer of having suitable directors elected, appropriate auditors appointed and executive officers retained through proper compensation arrangements.

[7] Per http://www.issgovernance.com/policy/EngagingWithISS: “Draft reports are provided in certain markets as a courtesy by and at the sole discretion of ISS, in order to allow an issuer to fact check the information prior to publication, thus allowing us to provide more accurate reports to our clients.”

[9] Per http://www.issgovernance.com/policy/EngagingWithISS: “If there are particular points you want to be sure the analysts are aware of (for example, information relevant to a equity compensation plan that may be buried in a footnote, or corporate governance changes the company has undertaken), please send an email to Research Central with the points outlined and proxy page or other source noted - it will be put in the appropriate meeting folder so the analysts can review it when they are ready to do so.”

[10] Per http://www.issgovernance.com/policy/EngagingWithISS: “[…] ISS does not normally allow preliminary reviews of any analysis relating to any special meeting or any meeting where the agenda includes a merger or acquisition proposal, proxy fight, or any item that ISS, in its sole discretion, considers to be of a controversial nature.”

[11] Consider also, in particular, items 2.6 and 4.12 of NI 25-101, which are noted in Appendix A.

[12] We believe sufficient time for issuer review to be at least two business days and that two to three weeks will provide sufficient time for completion of a meaningful dialogue between an issuer and proxy advisor regarding any factual errors or other disagreements concerning the application of the proxy advisor’s policies to the issuer.

[13] We do not take issue with ISS’s assertion, at http://www.issgovernance.com/policy/FrenchEngagement_Disclosure, that “Proxy advisory reports are copyrighted works which are the valuable intellectual property of ISS. Any prior disclosure of our research reports to issuers, whether in France or elsewhere, is made on the condition of strict confidentiality and under no circumstances is an issuer to publish or otherwise disseminate all or part of the report.”

[14] Per http://www.issgovernance.com/policy/FrenchEngagement_Disclosure: “For a number of years, ISS has been providing French corporate issuers with an opportunity to review the factual accuracy of the data included in ISS’ pending proxy analyses. ISS believes that this review process helps improving the accuracy and quality of its analyses, an outcome that is in the best interests of both the institutional investors for whom the analyses are prepared, as well as for the issuers that are the subject of these reports.”

[15] Such matters are noted as including alterations of share capital, charter amendments, property acquisitions or dispositions, reverse takeovers, amalgamations, mergers, arrangements or reorganizations and other similar transactions.

[16] Consider support for this assertion found in the personal remarks of Troy A. Paredes (Commissioner) of the U.S. Securities and Exchange Commission at Society of Corporate Secretaries & Governance Professionals, 66th National Conference on “The Shape of Things to Come” on July 13, 2012 (retrieved from http://www.sec.gov/news/speech/2012/spch071312tap.htm): “Not only is it important for regulators to recognize that one-size-fits-all governance and pay practices don’t work so well for most companies, but board members, officers, investors, and other corporate constituencies also should recognize that each company is unique. Proxy advisory firms should keep this in mind too given the understandable concern that has been raised that the recommendations of proxy advisory firms are too often based on a one-size-fits-all view of things. Indeed, given other concerns that have been expressed about proxy advisory firms – including that conflicts of interest may bias their recommendations and that their recommendations may be based on inaccurate information – it seems to me that the role of proxy advisory firms needs to be addressed.”

[17] Consider also, in particular, item 2.1 of NI 25-101, which is noted in Appendix A.

[18] See Romano, Roberta; Bhagat, Sanjai; and Bolton, Brian, "The Promise and Peril of Corporate Governance Indices" (2008). Faculty Scholarship Series. Paper 1920, which concludes that there is no consistent relation between governance indices and measures of corporate performance. See also the Rock Centre Study, which concludes that the proprietary models used by proxy advisory firms for say-on-pay recommendations appear to induce boards of directors to make choices that decrease shareholder value.

[19] At paragraph 84.

[20] At paragraph 85.

[21] According to http://www.issgovernance.com/files/ISSDueDiligenceCompliancePackage.pdf (dated July 2010), “ISS’ research staff is comprised of more than 200 research analysts and 75 data analysts, located in financial centers worldwide”, while according to the Form 10-K filed by RiskMetrics Group Inc. with the SEC on February 24, 2010, “During the proxy season (March to July), ISS typically retains approximately more than 200 temporary employees.”

[22] AMF France Recommendation provides that “the proxy advisory firm should dispose of the appropriate skills and resources to provide the relevant services, and especially to analyse draft resolutions. The persons in charge of examining draft resolutions must have adequate skills and experience to conduct this type of analysis.”
Consider also, in particular, items 2.5, 2.7 and 2.13 of NI 25-101, which are noted in Appendix A.

[23] Consider also, in particular, items 3.4, 3.5, 3.7 and 3.8 of NI 25-101, which are noted in Appendix A.

Ontario Securities Commission

Re: Proposed Amendments to Part IV of the Toronto Stock Exchange (“TSX”) Company Manual (the “Manual”) – Request for Comments

We welcome the opportunity to provide this submission concerning proposed amendments to certain governance standards and disclosure requirements regarding the director election practices of TSX-listed issuers, as contained in the Manual (the “Proposed Amendments”). Our Board takes matters of corporate governance very seriously and Power Corporation of Canada (“Power”) and its subsidiaries are active participants in the public dialogue regarding corporate governance in Canada.

As a general comment, while we strongly believe that sound corporate governance practices are essential to the well-being of a company, the imposition of “one‑size‑fits‑all” governance measures is inappropriate since issuers should have the flexibility to adopt governance practices that they believe are the best suited for their particular needs and circumstances, subject to compliance with applicable corporate law.

The Power Group

Power (TSX: POW) is a diversified international management and holding company that holds interests, directly or indirectly, in companies that are active in the financial services, communications and other business sectors in Canada, the United States, Europe and Asia. We are major long-term shareholders of companies, including Canadian public company subsidiaries, such as Power Financial Corporation (TSX: PWF)[1], Great-West Lifeco Inc. (TSX: GWO)[2] and IGM Financial Inc. (TSX: IGM)[3]. Power has had controlling shareholders since its beginnings in 1925 and its present controlling shareholder holds, in aggregate, directly or indirectly, an approximately 61% voting interest in Power.

Appropriateness of this TSX Initiative

Director election practices are currently, and have been historically, the subject of carefully considered and well-developed corporate law. While the TSX plays a vital role, particularly in the areas of continuous disclosure and matters concerning changes in capital structures, we respectfully submit that the TSX should not regulate areas outside of its primary and historical jurisdiction and area of expertise[4], which, in the case of listed issuers, relates almost primarily to the disclosure of material information and issuances of securities.

Majority Voting

Although the Proposed Amendments do not mandate majority voting or the adoption of a majority voting policy[5], it is our view that the proposed comply-or-explain model necessarily implies that adoption of a such a policy is a best practice for all companies, with corollary negative implications for companies with legitimate explanations for non-adoption.

Governance Differences for Controlled Companies[6]

Since 2007, our shareholders have had the ability to vote for or withhold from voting for each individual nominee proposed for election to our Board of Directors. As both a controlled company and a controlling shareholder, it is our view that, as concerns majority voting, the current regime in respect of the process for the election of directors under corporate law is appropriate and that no changes are desirable or necessary. We are in compliance with corporate laws in respect of director elections and would respectfully point out that Canadian corporate law in this regard is the result of over a century and a half of careful consideration by both the courts and the applicable legislatures.

Requiring controlled companies to adopt a majority voting policy would be an illusory shareholder democracy development at best and would not serve a concrete purpose since the controlling shareholder would necessarily cast a majority of the votes to be cast in an election of the company’s directors. In such a context, it is unclear how a majority voting policy would provide “a meaningful way for security holders to hold directors accountable and remove underperforming or unqualified directors”.[7] A controlling shareholder would be expected to have an active dialogue with the controlled company through its board and nominating committee and, as a practical matter, would not choose the casting of votes at a shareholder meeting as the forum for raising its displeasure with any board nominees. Accordingly, imposing such requirements on a controlled company, would serve no purpose and would be misleading to shareholders (given it can have no possible practical effect). In addition, it would only serve to increase the costs and complexity of the process for electing directors and would not be in the best interests of the shareholders as a whole. Finally, taking into consideration the specificity of controlled companies is all the more warranted considering that 18% of the firms listed in the S&P/TSX Index are controlled companies[8]

Acknowledgement of Governance Differences for Controlled Companies

On October 11, 2011, the Canadian Coalition for Good Governance (“CCGG”) published its Policy Regarding Governance Difference of Controlled Corporations (the “CCGG Guidelines”). While we do not agree with all aspects of the CCGG Guidelines, they reflect the culmination of CCGG’s consultative research of equity controlled companies, undertaken in order to understand such companies’ unique governance issues.[9] The CCGG Guidelines recognize that certain of the governance guidelines contained in CCGG’s 2010 Building High Performance Boards “may not apply equally to equity controlled companies” and, accordingly, supplements those guidelines to take into account “the legitimate governance differences of equity controlled corporations”.

While the CCGG Guidelines provide that, generally, companies should adopt a majority voting policy, they recognized that for controlled companies[10], adoption of such a policy would rarely lead to the resignation of a director, and therefore a controlled company should instead adopt a policy that commits the company to: (i) allowing shareholders to vote for each individual director; (ii) disclosing the results of director elections promptly after each annual meeting, and (iii) immediately adopting a majority voting policy if at any time the company ceases to be a controlled company.

Further, in National Policy 58-201 – Effective Corporate Governance, the Canadian Securities Administrators (“CSA”) acknowledged that concerns have been expressed in respect of how existing governance policies affect controlled companies and the CSA committed to carefully considering such concerns, and to undertaking a study, with consultation of market participants, to examine the governance of controlled companies and consider whether to change how existing governance policies treat such companies[11].

Conclusion

While we strongly believe that sound corporate governance is essential to the well-being of a company, no single corporate governance model is superior in all respects and the imposition of a “one‑size‑fits‑all” governance measure is inappropriate as it fails to recognize differences among companies, such as the presence of a controlling shareholder. Accordingly, while we do not support amending the Manual to require comply-or-explain disclosure in respect of the majority voting or to mandate that TSX-listed issuers adopt a majority voting policy for uncontested director elections, if any such amendments are forthcoming, our view is that they should not apply to companies where a controlling shareholder holds a majority of the votes to be cast in respect of the election of directors, in recognition of the fact that such controlled companies have unique governance considerations and that a majority voting policy does not serve a useful purpose for shareholders of such companies.

Representatives of Power would be pleased to discuss the foregoing with the TSX if that would be of assistance.

Yours very truly,

Stéphane Lemay

Vice-President, Assistant General Counsel and Associate Secretary

[1] Power holds an approximately 66% voting interest in Power Financial Corporation.

[3] Power Financial Corporation and The Great-West Life Assurance Company, a subsidiary of Great-West Lifeco Inc., hold 57.5% and 3.6%, respectively, of IGM Financial Inc.’s common shares, representing, in aggregate, an approximately 61% voting interest in IGM Financial Inc.

[4] On February 22, 2005, the Ontario Securities Commission approved amendments to the Manual relating to corporate governance, effectively ceding regulation of such matters to the Canadian Securities Administrators.

[5] However, Question 4 notes: “Do you support TSX mandating that its issuers have a majority voting policy for uncontested director elections? Please identify potential positive and negative impacts that may result if issuers are required to have a majority voting policy.”

[6] While we acknowledge that a shareholder can effectively maintain control with less than a majority voting interest in a corporation, when used herein, “controlling shareholder” refers to a shareholder with at least a 50% voting interest in a corporation and such corporations are referred to herein as “controlled companies”.

[7] We are strongly opposed to any future imposition of a “majority of the minority” voting requirement for director elections as such a requirement would effectively disenfranchise controlling shareholders and expropriate their economic rights without compensation.

[8] See results of the study of voting power in the 253 listed firms in the S&P/TSX Index in July 2008, reported in Policy Paper No. 3, “The Independence of Board Members: A Quest for Legitimacy” of the Institute for Governance of Private and Public Organizations.

[9] The CCGG has committed to prepare guidelines for dual-class share companies, which have further unique governance issues, in the future.

[10] As the CCGG Guidelines only relate to those issuers who are controlled through the ownership of common shares, and not to issuers who are controlled by virtue of multiple-voting or dual class share structures, “controlled companies”, in this context, are limited to companies where a shareholder controls 50% or more of the common shares.

[11] See Section 1.1. We note the importance to investors, large or small, of this undertaking by the CSA and encourage the CSA to continue its review and to proceed with appropriate revisions at an early opportunity.

We welcome the opportunity to contribute to the discussion in respect of the initiative of the Ontario Securities Commission (the “OSC”) in considering regulatory developments regarding shareholder democracy issues. Our Board takes matters of corporate governance very seriously and Power Corporation of Canada (“Power Corporation”) and its group companies are active participants in the public dialogue regarding corporate governance in Canada.

As a general comment, we are of the view that issuers should have the flexibility to adopt governance practices that they believe are the best suited for their particular needs and circumstances, subject to appropriate disclosure.

We note that the Staff Notice discloses that the OSC intends to coordinate its review and the development of regulatory proposals relating to the matters covered by the Staff Notice with other members of the Canadian Securities Administrators (“CSA”). As the matters covered by the Staff Notice necessarily reach beyond provincial borders, we support such coordination and strongly suggest that any such review and development of regulatory proposals actually be conducted at the level of the CSA from the outset. As Power Corporation and Power Financial Corporation (a subsidiary of Power Corporation) are subject to the Autorité des marchés financiers in Quebec as primary regulator, and Power Financial Corporation’s publicly traded subsidiaries, Great-West Lifeco Inc. and IGM Financial Inc., are each subject to the Manitoba Securities Commission as their primary securities regulator, co-ordination by the CSA in this regard is of even more significance to us.

We also note that certain of the subjects referred to directly or indirectly in the Staff Notice, such as election of directors and the duties of the board to supervise management (of which executive compensation decisions are an important part) are currently and have been historically the subject of carefully considered and well-developed corporate law, not securities law. While securities commissions play a vital role, particularly in the area of investor protection, we respectfully submit that the OSC should not regulate areas outside of its primary and historical jurisdiction and area of expertise namely, securities regulation, which, in the case of issuers, relates almost entirely to disclosure requirements.

The Power Group

Power Corporation, as a diversified international management and holding company, has invested many billions of dollars directly and indirectly in Canada, the United State, Europe and Asia. We are major long-term shareholders of companies, including Canadian public company subsidiaries, such as Power Financial Corporation (66.1%), Great-West Lifeco Inc.[1] and IGM Financial Inc.[2]. In addition, Power Corporation has had controlling shareholders since its beginnings in 1925 and its present controlling shareholder holds in aggregate, directly or indirectly, shares carrying 61.1% of the votes attached to our outstanding voting shares.

Majority Voting and Slate Voting

As both a controlled company and a controlling shareholder, it is our view that, as concerns majority voting and slate votin[3], the current regime in respect of the process for the election of directors under corporate law is appropriate and that no changes in these areas are desirable or necessary. We would respectfully point out that Canadian corporate law in this regard is the result of over a century and a half of careful consideration by the both courts and the legislatures. However, if proposals for change were forthcoming through securities law, our view is that they should recognize that controlled companies have unique governance considerations.

Because the controlling shareholder would necessarily cast a majority of the votes to be cast in an election of a controlled company’s directors, requiring controlled companies to adopt a majority voting policy would be an illusory shareholder democracy development at best and would not serve a concrete purpose (unless it were intended as a stepping stone to the imposition of a “majority of the minority” voting requirement for director elections. Such a requirement would effectively result in the stripping out of the economic rights of the controlling shareholder without compensation.) A controlling shareholder would be expected to have an active dialogue with the controlled company through its board and nominating committee. As a practical matter, the controlling shareholder would not choose the casting of votes at a shareholder meeting as the forum for raising its displeasure with board nominees. Accordingly, imposing such a requirement on a controlled company would serve no purpose and would be misleading to shareholders (given it can have no possible practical effect). In addition, it would only serve to increase the costs and complexity of the process for electing directors and would not be in the best interests of the shareholders as a whole.

While the Power group of companies have adopted individual voting for election of directors, we believe each company and its shareholders should be able to choose the method that works best for each, as is currently the case. Ultimately shareholders have the ability, through their election of directors, the amendment of articles or bylaws, or through shareholder proposals, to give effect to individual voting.

Advisory Vote on Executive Compensation

Power Corporation and our Board of Directors appreciate the importance placed on effective executive compensation programs.

By law, the directors, who are elected by the shareholders, have a duty to supervise the management of the business and affairs of a corporation. It is our view that it is important to maintain clarity regarding the role of a board as distinct from the role of shareholders (indeed, if shareholders are to be encouraged to usurp the role of the Board, one is tempted to ask why such intrusion should stop with executive compensation, and not extend to other issues such as corporate strategy or capital allocation). The current approach to overseeing executive compensation appropriately recognizes that role and aligns the interests of a corporation’s shareholders with the need for flexibility and certainty in structuring appropriate compensation arrangements.

One of the board’s key responsibilities is to assess the performance of senior executives and approve their compensation arrangements, with the objective of generating superior long-term performance. Executive compensation policies have become increasingly complex and must take into account many factors. Our view is that a corporation’s directors are in the best position to oversee the executive compensation arrangements at a corporation. A corporation’s board (or a committee thereof) has full access to the necessary information and has the benefit of external professional guidance and the relevant experience of its members to make the appropriate decisions. As well, unlike directors who are required by law to make decisions in accordance with their fiduciary duties to act with due care and with a view to the best interests of the corporation, individual shareholders have no such legal duties, to either other shareholders or to the corporation.

In addition, any proposal requiring shareholder votes on executive compensation at a controlled company would be neither effective nor efficient. Requiring a controlled company to adopt such a policy would be an illusory shareholder democracy development at best and not serve a concrete purpose since the controlling shareholder would necessarily cast a majority of the votes to be cast in respect of such a matter. A controlling shareholder would be expected to have an active dialogue with the controlled company through its board and compensation committee, and would not choose the casting of votes at a shareholder meeting as the forum for raising its displeasure with executive compensation. Accordingly, imposing such requirements on a controlled company would only serve to increase the costs and complexity of the process for setting executive compensation and would not be in the best interests of the shareholders as a whole.

Effectiveness of the Proxy Voting System – Proxy Advisory Firms

In our view, any review of the effectiveness of the proxy voting system should include consideration of the development of regulatory proposals in respect of proxy advisory firms.

The July 24, 2010 concept release of the U.S. Securities and Exchange Commission (the “SEC”) sought public comment on a number of topics concerning the U.S. proxy system and noted a number of potential issues raised by the substantial increase in the use of proxy advisory firms by institutional investors over the last twenty-five years. The SEC’s concept release sought comment on a variety of matters concerning development, dissemination and implementation of voting recommendations by proxy advisory firms, accountability for such recommendations, conflicts of interest, the level of control or influence over shareholder voting and corporate policy, and the potential need for further regulation.

Similarly, the September 23, 2010 report of the New York Stock Exchange Commission on Corporate Governance (the “NYSE Commission”) noted an increased level of concern regarding the impact of proxy advisory firms. In its report, the NYSE Commission expressed its view that the SEC should engage in a study of the role of proxy advisory firms to determine their potential impact on, among other things, corporate governance and behaviour and consider whether or not further regulation of these firms is appropriate. The NYSE Commission’s report contained recommendations in respect of proxy advisory firms regarding minimum standards for, among other things, disclosure of policies and methodologies concerning formulation of voting recommendations, conflicts of interest, codes of conduct, and the degree of care, accuracy and fairness required in dealing with shareholders and companies.

Consequently, we would urge the CSA to formally consider the role of the different market intermediaries in Canada, and more specifically the proxy advisory firms, following the lead of the SEC and NYSE in that regard.

Director Independence

Although not specifically discussed in the Staff Notice, in our view, any initiative considering new regulatory requirements regarding corporate governance as they relate to “shareholder democracy” issues should not proceed until the long standing issue of the flawed independence criteria applicable to directors of controlled companies is resolved. This is a topic which is very relevant to our role as a shareholder in Canadian public companies.

At Power Corporation, it has been our practice for decades to take an active role in the oversight of our subsidiaries. For instance, officers of Power Corporation, whose full-time job is to focus and become knowledgeable about the affairs of the companies we are invested in, sit on the boards of our subsidiaries. They have no other relationship with our subsidiaries other than as directors and shareholders. We are major long term shareholders, and our interests are in seeing that our own shareholders, and indeed all our stakeholders prosper over the long term. We believe this approach works well. Indeed, in our view it is because of this approach that many shareholders invest in Power and in our publicly traded subsidiaries. And yet our representatives on subsidiary boards are deemed to be not independent.

The CSA had explicitly acknowledged the concerns expressed by reporting issuers as to whether the CSA’s view of director independence was appropriate to companies such as Power Corporation and its publicly traded subsidiaries which have a majority shareholder. Thus, at the time of the implementation of 58-201 the CSA indicated it intended “to carefully consider these concerns in the context of a study to examine the governance of controlled companies” and that it “would consider whether to change how this Policy…treat(s) controlled companies”. On December 19, 2008, the CSA published “Request for Comment—Proposed Repeal and Replacement of NP 58 201 Corporate Governance Guidelines, NI 58-101 Disclosure of Corporate Governance Practices, and NI 52 110 Audit Committees and Companion Policy 52-110 CP Audit Committees” which included, among other things, the replacement of the current prescriptive approach, and use of deeming rules, to independence with a more principles-based approach.

Although our Board of Directors was encouraged by the new direction proposed by the CSA, the CSA subsequently decided not to proceed with its proposed revisions as then-published. The CSA indicated in Staff Notice 58-305 – Status Report on the Proposed Changes to the Corporate Regime that, based on the fact that “a majority of commenters expressed the view that now is not an appropriate time to introduce significant changes to the corporate governance regime in Canada”. The CSA determined not to implement these proposed changes (even though there was no serious objection by any commentator to eliminating the deeming rules as they related to controlling shareholders).

Power Corporation encourages the CSA to continue its review of the “independence” definition as it relates to majority shareholders and to proceed with appropriate revisions at an early opportunity. In our view, the determination of director independence should be based upon whether or not the director is independent of the issuer’s management, and whether or not the director has any other relationships with the issuer which could reasonably be expected to interfere with the exercise of the director’s independent judgement. We believe that this is a question of fact that should be determined by a corporation’s board of directors on a case-by-case basis without reference to any presumptions. The currently applicable regime provides that directors of a controlled corporation are automatically deemed to not be independent if they have certain relationships with the controlling shareholder, even if such directors have no other relationship with either the controlled corporation or management of the controlled corporation, other than as a director. These provisions, among other things, prevent any such directors from sitting on the audit committee of the controlled corporation and give the inappropriate and misleading impression to the marketplace that the independent judgement of such directors is somehow compromised. These provisions disenfranchise us as shareholders and we reiterate our prior requests to have this rectified.

Any concerns which may exist in a controlled company situation about conflicts of interest or self-dealing should, in our view, be resolved directly through a committee of directors who are independent of the controlling shareholder and of management. The governance model at Power Corporation includes such a committee, the Related Party and Conduct Review Committee. Each of our publicly traded subsidiaries also has such a committee. This system works quite well.

To conclude, if, in fact the OSC is proposing new significant changes to corporate governance, it would appear to be a very appropriate time for the CSA to address the long outstanding deficiencies of the director independence deeming rules.

Representatives of Power Corporation would be pleased to discuss the foregoing with representatives of the OSC or CSA if that would be of assistance.

Mr. John Stevenson, Secretary

We welcome the initiative of the Canadian Securities Administrators (the “CSA”) in reviewing the Current Governance Materials (the “Materials”).

The Power Group

Power Corporation, as an international holding company, has invested many billions of dollars directly and indirectly in Canada, the United States, Europe and Asia. It has been our practice for decades to take an active role in the oversight of our subsidiaries. Officers of Power, whose full-time job is to focus and become knowledgeable about the affairs of the companies we are invested in, sit on the boards of our subsidiaries. We have no other relationship with our subsidiaries other than as directors and shareholders. We are major long-term shareholders in such companies, including our subsidiaries, and our interests are in seeing that our own shareholders, and indeed all our stakeholders, prosper over the long term. Through our subsidiaries’ boards and their committees, we work with management toward this objective.

We think this approach works well; as representatives of the controlling shareholder, executives of Power are well placed to represent the interests of all shareholders in interacting with management at the board level. Some of our subsidiaries, such as Power Financial Corporation, Great-West Lifeco Inc. and IGM Financial Inc., are publicly traded. The fact that these companies have a controlling shareholder is transparent. In our view, it is because of this approach that many shareholders invest in Power and in our publicly traded subsidiaries. These shareholders expect us to play a controlling role in this way, with proper respect for the interests of all.

General Comments

The Materials currently provide that a director is deemed to be not independent if, among other things, the director is, or has been within the last three years, an executive officer or an employee of the issuer’s parent corporation. In our view, the determination of director independence should be based upon whether or not the director is independent of the issuer’s management, and whether or not the director has any other relationships with the issuer which could reasonably be expected to interfere with the exercise of the director’s independent judgment. We believe that is a question of fact that should be determined by the issuer’s board of directors on a case-by-case basis without reference to any presumptions such as those which are contained in the Materials. Controlling shareholder representatives should not be considered to be non-independent by definition.

Because the current independence deeming provisions contained in the Materials do not fit our model, we are made to appear to be “non-compliant” with the flawed definition of independence, and are required to explain ourselves. We believe this can give an inappropriate and misleading impression to the marketplace, as our directors sitting on our publicly traded subsidiaries’ boards are deemed to be non-independent when in fact, based on the basic test, they are independent. We find this troublesome given that we seek to meet the highest standards of governance practice and to provide accurate disclosure.

The CSA acknowledged in 2005 the concerns expressed by many reporting issuers as to whether the CSA’s view of director independence was appropriate to companies such as Power and its publicly traded subsidiaries. The CSA stated at the time, in National Policy 58-201, that it intended to “…carefully consider these concerns in the context of a study to examine the governance of controlled companies” and that it would “consider whether to change how this Policy… treats controlled companies”. The CSA re-affirmed this commitment in 2007. We welcomed these undertakings by the CSA to reconsider its position vis-à-vis controlled companies.

The Principles-Based Approach Proposed by the CSA

We are pleased with the recognition by the CSA, in the proposed related National Policy, that there is no single model of good corporate governance and that the structures and practices that are most appropriate will vary among issuers. In this context, we welcome the principles-based approach for disclosure of corporate governance proposed by the CSA, as compared to a “comply or explain” model.

We fully endorse the proposed removal of the “bright line” tests that result in representatives of a controlling shareholder being deemed to be non-independent. This change takes into account the realities of Canada’s capital markets and its large proportion of controlled companies.

We believe that the governance issues typically associated with controlling shareholders are not ones of “independence”, but rather relate to conflict of interests and “self-dealing”. In our view, Principle 6 of the proposed materials appropriately addresses those concerns.

Specific Request for Comment-Question 6 (a)

In connection with question 6 (a) of the Request for Comment, we share the concerns of the Alberta Securities Commission as to the introduction of a novel “perception” test for independence of directors. We are concerned that it could be unwieldy and an unworkable test for boards to attempt to determine what a third party may “perceive” with respect to a director as being independent or not, particularly in circumstances in which the board’s own view of a director’s independence is in conflict with their view of what might be perceived by a non-informed third party. We believe that this is a decision for the issuer’s board of directors, having regard to all relevant circumstances, on a reasonable basis, as is currently the case. This also has the significant advantage of retaining the current test for this purpose, which boards have developed experience in applying, and with which investors have become familiar.

Specific Request for Comment-Questions 9 (a), (b) and (c)

With regard to questions 9 (a) and (b) of the Request for Comment, we agree with the CSA that “independence” should mean independence from the issuer and its management and, in our view, relationships between a controlling or significant shareholder and the issuer can and should be effectively addressed through the recognition and management of conflicts of interest (the same principle should apply in our view to section 3.1 (b) of the proposed Companion Policy 52-110CP for Audit Committees, which should be amended to refer to employees of “subsidiaries” of the issuer, rather than “affiliates”, to avoid capturing employees of the controlling shareholder, which is inconsistent with the intent of the new definition of independence). Accordingly, we respond in the negative to your question 9 (a) and positively to your question 9(b).

With regard to question 9 (c) of the Request for Comment, we respond positively, provided that the determination of the appropriate number of independent directors unrelated to the controlling shareholder be made by the board of directors of the issuer, based on its own particular circumstances.

We also have two additional comments in connection with the definition of independence:

i- We believe there should be an explicit statement (such as the one included in the Request for Comment) in National Instrument 52-110 or its companion policy that a controlling shareholder and its employees and executive officers are not disqualified from being independent.

ii- Considering that the definition of “executive officer” includes a chair or a vice-chair of an issuer, we are of the view that the CSA needs to reinsert the exceptions currently included in section 1.4 (7) of National Instrument 52-110 in order to give full and proper effect to the removal of the “bright line” tests that currently result in representatives of a controlling shareholder being deemed to be non-independent.

Finally, we share the concern of the Alberta Securities Commission, raised by their question 2 in Appendix A, relating to section 3.1 (c) of the proposed Companion Policy 52-110CP for Audit Committees.

Implementation

Some observers have recently suggested publicly that given the existing challenges faced by issuers in Canada’s capital markets, now is not the time to implement a new regulatory framework for corporate governance. Should the CSA decide to postpone the implementation of the principles-based approach, it should at least deal immediately with the long-standing issue of independence in connection with controlled companies and correct the current flawed definition. That change could be made easily, by straightforward amendments to sections 1.4 and 1.5 of current National Instrument 52-110.

Representatives of Power would be pleased to discuss the foregoing with representatives of the CSA if that would be of assistance.

Yours very truly,

Edward Johnson

Senior Vice-President, General Counsel and Secretary

We use cookies on this site to enhance your user experience and to remember your preferences. By continuing to browse our website, you are agreeing to our use of cookies. To find out more about these cookies,
click here.